The Supreme Court of Uganda today (31 March) upheld the election of Yoweri Museveni as president. Now nothing, constitutionally, can stop him from serving a seventh term.
[NB Technical difficulties mean that there are fewer pictures in this post than usual – apologies]
‘I’m going to celebrate President Museveni,’ said a boda-boda (motorbike taxi) driver this afternoon at Clock Tower, near Kampala city centre. In front, a yellow-shirted organizer was corralling a crowd of around a hundred motorbikes in preparation for a victory parade. ‘But I like Besigye,’ the same boda-boda driver continued, referring to the main opposition leader. He had been offered a full tank of fuel to join the rally – enough, he reasoned, to masquerade as a Museveni fan for the next couple of hours.
There were many like him, say the opposition, in last month’s masquerade of an election: people who were coaxed into voting for Yoweri Museveni by a bag of sugar, a block of soap, or a much-needed hoe. The opposition also allege intimidation, the deliberate disenfranchisement of voters and – just to make sure – ballot-stuffing and fabricated results.
The Supreme Court heard all these arguments in a six-day hearing this month, initiated by a legal challenge from Amama Mbabazi, the third-placed candidate. Today it announced its verdict: to uphold the victory of Museveni. On 12 May the ‘old man in the hat’ will be sworn in for the seventh time, and there’s nothing anyone can do – constitutionally – to stop it.
The courtroom this morning was packed with jostling journalists, nervous lawyers and Very Important People – including Badru Kiggundu, the controversial head of the Electoral Commission, leaning forward in his chair to hear the judges. Chief Justice Bart Katureebe took an hour and a half to read the verdict, taking each of the allegations in turn.
There were flashes of criticism. The late delivery of voting materials in Kampala and Wakiso – key opposition strongholds – was ‘evidence of incompetence and gross inefficiency’. The failure of returning officers at 1,787 polling stations to send results on time was ‘inexcusable’. The detention of Mbabazi last July, as he was heading to consultative meetings in the east, was ‘unjustified and highhanded’. The judges also found non-compliance with electoral law in the unequal coverage of candidates by state media, and in the interference of police and security forces with Mbabazi’s campaign.
But time and again the judges dismissed the evidence submitted by Mbabazi’s lawyers. Evidence of ballot-stuffing was ‘not convincing’. Allegations of multiple voting was based on ‘hearsay evidence’. Claims that Mbabazi’s agents were chased away from polling stations were ‘difficult to believe’. There were ‘no material discrepancies’ between the paperwork from polling stations and the declared results.
The judges repeatedly sidestepped a fundamental problem: the fusion of the ruling National Resistance Movement (NRM) with the Ugandan state. They accepted the argument of Museveni’s lawyers that the distribution of hoes to farmers was a state programme, rather than an electoral bribe. They pointed out that the New Vision newspaper is no longer wholly owned by the state, ignoring the fact that the government still has a majority share. They reasoned that the presence of the army near some polling stations was justified based on ‘intelligence information’.
Finally, the judges invoked the famous ‘substantiality’ test – that evidence of malpractice alone is not sufficient to annul an election, unless that malpractice ‘affected the result in a substantial manner’. This test has been much criticised, for turning the ruling into a mathematical exercise. While the judges accepted that this could not be the whole story, they did not depart significantly from the quantitative approach, expressing a reluctance to reject ‘the true will of the majority of voters’.
At 12.08, the Chief Justice Katareebe came to the conclusion: ‘we hereby declare that [Museveni] was validly elected as President’. For the third time, after similar challenges in 2001 and 2006, a petition against the election of Museveni had failed. And unlike on those occasions, when the judges had been split, their verdict this time was unanimous. Outside it started to rain, torrentially.
There was disappointment for the opposition, and relief for the regime. But nobody seemed surprised. The case put forward by Mbabazi’s team had been weak, and at times shambolic. Partly this was a failing of the lawyers. More significantly, it reflected the scale of their task. They had to produce sufficient evidence of malpractice within ten days of the election, with the entire machinery of state working against them. On the week of the pre-trial hearing, their offices were mysteriously ransacked, and computers and files stolen. The Electoral Commission only gave them full access to election paperwork on the penultimate afternoon of the hearing; lawyers were up all night sifting through documentation before fumbling through their case in court.
On the basis of the evidence presented the judges reached a fair decision, one lawyer said afterwards. But if the judges had seen all the evidence, he added, they would have reached a very different conclusion.
Another reason for the verdict was the nature of the case, which only addressed the period of campaigning. After thirty years of NRM rule, voting decisions are embedded in a set of implicit understandings: that pro-Museveni areas are more likely to benefit from development projects, or that defeat for Museveni (it is widely believed) could trigger civil war.
These ingrained beliefs do not show up as ‘bribery’ or ‘intimidation’. They do not enter the arithmetic of the substantiality test. But, combined with some real support for Museveni among rural and older voters, they helped him win votes across the country. Some crude vote-rigging undoubtedly took place, but it was probably not where the election was won (see ‘Winner Takes All’, 4 March) .
And then there is the court itself. Nobody knows what pressures were put on the nine judges, all of whom are Museveni appointees. One judge from the 2006 case later alleged that his colleagues had changed their minds after late night calls from State House. Perhaps similar conversations were had this time; perhaps not. But there were suppressed chuckles in court when Chief Justice Katareebe quoted a paragraph from a civil society group urging legal reform. Among the list of demands was a call for ‘the establishment of an independent judiciary to adjudicate on electoral disputes impartially’.
We Shall Overcome
At a press conference this afternoon Amama Mbabazi vowed to continue the struggle, promising to release further evidence of malpractice in due course. He also remarked that experience of being in opposition – he was, until 2014, a leading figure in the regime – was a ‘journey of discovery’ in the viciousness of the state. He may have more to learn: his dismal failure to win popular support, and the defeat of the petition, have left him marooned without a party or obvious future prospects.
One man who needs no lessons about state vindictiveness is Kizza Besigye, the second-placed candidate, who many believe to be the true winner of this election. He remains under house arrest at his home in Kasangati, from where he today denounced the ‘armed overthrow of the 2016 electoral process’. Elsewhere police blocked access to his offices, where leaders in his party, the Forum for Democratic Change (FDC), had been intending to meet.
The FDC has been keeping a low profile while the election petition was in process. They have so far run a fluffy campaign of minor protests: the wearing of blue (the party colours) or black (for mourning); stay-at-home Thursdays in solidarity with Besigye; prayers on Tuesdays. FDC leaders repeatedly stress that they are committed to non-violence, and they have adopted the iconography of civil rights struggles. Before Tuesday’s prayer meeting at FDC headquarters the soundtrack included anti-apartheid anthems and ‘We Shall Overcome’. Activists use the slogan ‘I Can’t Breathe’, borrowed from campaigns against police brutality in the US. Some FDC supporters today chained themselves to lamp posts in the city centre.
When the petition was still in progress, more confrontational forms of protest would have been seen as subverting the law. Now, with the attention back on Besigye and the FDC, it may be time for them to step up their campaign. ‘We are ready to go to the next level,’ says one FDC youth organizer. Other activists talk with enthusiasm of revolutions in Tunisia and Egypt.
Scepticism and fear
But don’t expect a ‘Ugandan Spring’ any time soon. Two armoured police trucks, with tear gas and water cannons, were parked this afternoon at the edge of Kiseka market, a spare parts market and hotbed of protest in downtown Kampala. Mechanics reported that groups of soldiers had been patrolling the market throughout the day. If the opposition are to mount a campaign on the streets, they will need to overcome the fear that this heavy security presence creates.
‘We are in a military government,’ said one spare parts dealer in Kiseka. The name of Chief Justice Katureebe had become a curse word, he said. He believed that the judges were mere puppets of the regime, ‘like a picture’. Behind the scenes, he said, ‘someone’s dictating on this’.
Meanwhile the boda-boda drivers at Clock Tower were gearing up for the victory parade. Justine, a local shopworker, watched sceptically as they drove off, an unconvincing cavalcade of yellow. ‘They are just pretending to be supporters of Museveni,’ she said. Like many in the capital, Justine loathes the current regime. But she was sceptical that it could be dislodged soon: ‘They have the power, they have the tear gas, they have the guns.’