Mbabazi’s evidence on Museveni election

Fatal strategies

Apparently, although FDC gave them the matrices and data of some of the 20,000 DR forms, 12,000 of which showed glaring inconsistences, the Mbabazi team decided not to tender them in court as evidence. Some Mbabazi lawyers argued that focusing on quantitative evidence of the Besigye type would swing back the case to the thorny issue of “substantiality” of each malpractice vis-a-vis the final results announced.

The evidence would have showed inconsistences between the EC data and that submitted by the Mbabazi team. But it could have raised a different case from the one they were pushing – for instance, that the EC did not have DR forms and, therefore, could not have declared results of the election.

Court was looking into whether the EC carried out the election without complying with the provisions and the principles of electoral laws and whether this noncompliance affected the election results in a substantial manner.

As part of the petition, the court was also looking into whether candidate Museveni personally, or by his agents with his knowledge and consent or approval committed the alleged illegal practices or electoral offences.

The Attorney General had also been added to the petition to represent government officials alleged to have committed electoral offences. If court found that these offences were committed, Mbabazi wanted court to order a vote recount in some 45 districts, a declaration that President Museveni was not validly elected as President, an order that his election be annulled and costs of the petition be awarded to the petitioner.

Mbabazi’s lead lawyer, Mohmed Mbabazi had argued that the thrust of their case was hinged on proving non-conformity and electoral offences. He was convinced court could annul the election on that basis. Mohmed earned the right to call the shots when he steered a few early victories for team Mbabazi.

He pulled off the first ever Supreme Court allowing an amendment to a presidential election petition. Sources told The Independent that on the day Katureebe allowed 15 new grounds to be added to the petition, the feeling in the Museveni camp was that they were dealing with a hostile court. Even some of Mbabazi’s lawyers told The Independent that Katureebe was capable of even annulling the elections. One of them who had looked at the data of the FDC team, said Besigye who was second to Museveni, would have stood a better chance before the Katureebe-led team.

Mohmed had also impressed by how he rallied the Mbabazi team even after the suspicious break-in at two firms—Fred Muwema’s and his. The petitioners alleged the burglars carried off 300 affidavits.

He had also managed to get court, at the very last minute, to force the Electoral Commission to submit Declaration of Results and other documents, which they hoped to use to expose inconsistences.

Commentators have, however, pointed at the weakness of insisting on not giving numbers. They point at how another Mbabazi lawyer, Asuman Basalirwa, got entitled in a verbal slugfest with the judges because of attempting to argue without adducing evidence.

Basalirwa, a short stocky man of 31 years has relied on his big voice when stumping for the opposition since his student politics with the raucous Uganda Young Democrats (UYD) at Makerere University and later with the Justice Forum party which he leads.

He raised some solid arguments but these pale in comparison to when he struggled and abandoned argument after another in the first round of submissions. On the last day of hearing, his voice got louder with premonition and with his left hand and index finger in the air, it was as if he was pointing at the justices.

Another lawyer who watched the spectacle said Basalirwa had sadly forgotten that he was in court and behaved like he was at a campaign rally. Basalirwa even played ping-pong with Justice Katureebe over the EC’s mandate to compile and retire the voters register.

Basalirwa said the failure to use, compile, and update voters’ register was a grave omission by the EC, which inevitably affected the credibility of the election. He said the EC is not mandated under any law to retire the voters’ register. “What is it (EC) mandated to do?” Chief Justice Katureebe asked him. “It is mandated to compile…” Basalirwa said. “Can you define for us the word compile so that we understand the difference between compile and retiring of the register,” Katureebe said. B

asalirwa made a fatal error when he Googled the terms. “To compile is to produce by assembling information collected from other sources,” he finally read before sensing his folly. Basalirwa could not cure his own mischief. The court broke out in laughter – at his expense.

Another moment followed when Basalirwa attempted to argue that by the EC retiring the voter register, many voters not on the new roll were disenfranchised. Fine, Justice Katureebe told him, all you need to do is give evidence for court to move on. That was the numbers question again, and Basalirwa sought to dodge it. “My lords, I didn’t talk about the disenfranchisement, I talked about the effect,” Basalirwa said. “You talked of the effect, that people did not vote,” Katureebe pressed. “Exactly, I talked about the effect,”Basalilwa said as court broke into laughter again. “Give us your evidence of that,” another justice said, “where is your affidavit evidence of that, that people didn’t vote?” “No no no,” Basalirwa said, “it is not that people did not vote.” Basalirwa went on and on.

At some point, Justice Jotham Tumwesigye, who had been looking on seemingly unimpressed, turned to Katureebe and whispered something. Katureebe turned and looked sternly at Basalilwa. “You have exactly five minutes to wind up,” he said.

Basalirwa’s next pitch met even stiffer responses. “Mr. Basalirwa,” Justice Katureebe cut him short at one point, “you have made the point, you cited that authority, you are speaking to rejoinder and you are going back and back and back and back, that is not the best way to do these things.” But this time Katureebe had not understood that Basalirwa had moved on to another point. When Basalirwa explained, Katureebe said; “Fine”. Basalirwa went on. But in the end the strategy worked against Mbabazi. “

The petitioner did not produce any DR forms which he had said was in his possession,” Katureebe said in the ruling, “Court therefore had no way of proving whether or not what was in the possession of the petitioner differed with the official record of the 2nd respondent. The petitioner therefore failed to discharge the burden of proving the allegation that serious discrepancies existed between what was declared by the 2nd respondent and what was declared at polling stations.”

Mbabazi’s team had submitted 67 affidavits of evidence. In comparison, in 2001 and 2006, Besigye’s team submitted between 200 and 250 affidavits respectively.