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AFFIDAVIT: Byabakama: I warned Kyagulanyi Against Holding Rallies

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The Electoral Commission (EC) has accused former presidential candidate Robert Kyagulanyi alias Bobi Wine, of flouting regulations put in place by the Commission and Ministry of Health to prevent the spread of COVID-19 during the recently-concluded election period.

In a response to Kyagulanyi’s petition challenging President Museveni election victory before the Supreme Court, EC chairperson Simon Byabakama said the Commission severally warned the NUP Presidential candidate to respect COVID-10 SOPs in vain.

“I know that in the meeting held on 15 December 2020, we pointed out to Kyagulanyi that his continued failure and neglect to comply with the Standard Operating Procedures by insisting on holding mass rallies and travelling in large processions risked the lives of the people which had resulted in unwarranted occasional confrontations with security personnel,” said Byabakama.

“We referred him to mass rallies at Iganga on 17th November 2020 and in Koboko on 8 December 2020; as well as countless processions he held or carried out enroute to his designated campaign venues as examples,” he added.

ChimpReports understands Bobi’s petition is mainly anchored on security forces’ disruption of his campaign activities, arrest and shooting of his supporters during the campaign period.

By disrupting his campaigns, Kyagulanyi contends that the presidential elections were not conducted in accordance with principles laid down in the Constitution, the Presidential Elections Act and the Electoral Commission Act.

The respondents are keen on demonstrating that law enforcement bodies were cracking down on illegal rallies which the Health Ministry described as a super spreaders of the virus.

Byabakama said “Kyagulanyi on numerous occasions during the campaign period did not comply with the guidelines issued by EC or indeed with the provisions of the Public Health (Control of Covid-19) Regulations issued by the Ministry of Health by holding processions on public roads, through towns, conducted massive rallies and ignored all other Standard Operating Procedures which led to several running battles between him and the officers of the Uganda Police Force.”

In a nutshell, Bobi accuses EC of disenfranchising voters by not ensuring all citizens eligible to vote were registered; failing to produce accurate voters’ register and conduct voter education; arbitrarily deciding the election roadmap, mode of campaign and guidelines; failing to ensure secure conditions for election and instituting selectively-applied arbitrary guidelines.

He also blames the EC for arbitrarily banning campaigns in 16 districts; failing to prevent/stop ballot stuffing and multiple voting; non-transparent tabulation, transmission and declaration of results; commission being under control and direction of candidate Museveni, state agents; failing to guarantee petitioner’s security and ensure his consultations happened uninterrupted and failing in effective distribution of voting materials.

Below is a slightly edited version of Byabakama’s affidavit:

I BYABAKAMA MUGENYI SIMON of C/O Kampala Associated Advocates, KAA House, Plot 41 Nakasero Road do hereby solemnly state and affirm as follows;

That I am a male adult Ugandan of sound mind and Chairman of the 2nd Respondent (Electoral Commission) and make this affidavit in that capacity.

That I have read and understood the petition and accompanying affidavit sworn by the Petitioner on 1st February 2021 and I reply thereto as herein below.

That I know that the instant Petition was filed outside the time prescribed by the Constitution and it is incompetent.

That in response to paragraphs 3 and 4 of the Petitioner’s affidavit, I know EC is mandated to announce the result of a presidential election within 48 hours after close of polling.

I also know the EC declared the result of the 2021 presidential election upon ascertaining that candidate Yoweri Tibuhabura Museveni had obtained more than 50% of the valid votes cast.

I know that on 29th January 2021 EC sent candidate Robert Kyagulanyi the final tally of the results and made the same public.

That in response to paragraphs 5 and 6 of the Petitioners affidavit, Kyagulanyi has no legal grievance under the electoral laws as alleged or at all.

I know that the contents of the said paragraphs do not constitute grounds for a presidential election petition.

That, in further response to paragraph 7, I know that there have been various amendments to the Electoral Laws as proposed by this Honourable Court.

The issue of amendments of electoral laws was heard and finally determined by the Supreme Court in Civil Application No. 05 of 2019; Prof. Ssempebwa Fredrick and Others Vs Attorney General.

I know that the Petitioner introduced himself to the EC as a presidential aspirant and received guidance as required by law.

I know further that the petitioner was informed that he was at liberty to proceed with his consultations but was advised to desist from holding rallies, campaigns and carrying out processions on public roads under the guise of conducting consultative meetings which would be at variance with the objective of consultations under Section 3 of the Presidential Elections Act.

I know that the Petitioner elected to conduct his consultations contrary to the 2″ Respondent’s advice.

I know that the Petitioner made a report to the EC alleging interference with his consultative meetings the Uganda Police Force and he and the members of the Uganda Police Force were invited for a meeting at EC’s premises.

Bobi Wine at a rally in West Nile

At the said meeting the EC made it clear to Kyagulanyi that he was in breach of the law prohibiting public processions on public roads and holding rallies and was acting in contravention of the lawful guidelines issued by the EC and he was advised to desist from violating the guidelines and it was agreed that the Petitioner would continue with the consultations but in accordance with the law.

I know that the contents of the said paragraphs are false in so far as they allege that the revised electoral road map was made as a result of our meeting with President Museveni.

I know that the meeting discussed the funding gaps experienced by the EC in implementation of its mandate.

The facts leading up to the revised electoral road map are as follows;

After the amendment of the Constitution and the Presidential Elections Act, the EC was required to conduct the presidential, general parliamentary and local council elections within the first thirty days of the last one hundred twenty two days before the expiration of the term of the President and therefore the election had to be held between 10% January 2021 and 8 February 2021.

That in developing the road map the EC considered The Electoral Cycle, Enabling Electoral laws, Public Procurement Requirements, EC Strategic Plan, Returning Officer and Observer Reports, Election Comments, Critiques, Court Rulings and Complaints from stakeholders.

The Roadmap covers the whole electoral process including activities of: Demarcation of Constituencies; Demarcation of Electoral areas; Reorganization of Polling Stations; General Update of the National Voters Register (NVR), Display of NVR; Nomination of Candidates; Campaigns; Polling, Ascertaining, Publishing and Declaring of results in writing.

The original road map released in December 2018, provided for nominations of the presidential candidates to be in August 2020.

SOPs

That in March 2020, the Government of Uganda announced a lockdown under the Public Health Act that prohibited interalia, Political meetings in a bid to stem the spread of the COVID 19 virus.

That subsequently, the Public Health (Control of Covid Regulations) 2020, allowed for political meetings but placed a limit on the number of people who could attend the said meeting to seventy people and subsequently increased to two hundred people.

Further the said regulations banned campaign rallies, and encouraged the use of media platforms in order to prevent person to person contact/spread of the virus,

The restricted mode of campaigns in the revised road map was therefore the result of consultations with Ministry of Health experts, the prevailing legal environment and the electoral cycle as determined by law.

EC did not act arbitrarily, but within the law in determining the manner of campaign given the environment presented by COVID 19.

I know that pursuant to the law, the EC appointed 24 and 3 November 2020 as the Nomination dates for presidential candidates and issued guidelines for the purpose of the said nominations.

That I know EC had a meeting for aspiring presidential candidates and representatives of those aspiring presidential candidates who were not in attendance sometime before nominations.

The purpose of the meeting was to harmonise and see the respective campaign schedules of each presidential aspirant.

That I know that the purpose of limiting crowds and processions, was based on advice from the Ministry of Health about how to combat the deadly Covid-19 pandemic.

That 2021 presidential elections were held amid the outbreak of the deadly global Covid-19 pandemic which has killed millions of people around the world and scores of people in Uganda.

That I know the Ministry of Health imposed restrictions on assembly, movement including a night time curfew, processions, number of worshippers allowed in churches and the number of people allowed at political meetings was restricted to initially seventy and then two hundred.

That EC was advised by Ministry of Health experts that these restrictions were demonstrably justifiable, based on clear scientific advice, meant to save lives and I know that they were anchored in law pursuant to the express provisions of the Public Health Act.

The Campaign Guidelines for Presidential Candidates Including Standard Operating Procedures to Mitigate the Effects of COVID-19 were issued in July 2020 within that context.

Kyagulanyi defiant

 That I know Kyagulanyi on numerous occasions during the campaign period did not comply with the guidelines issued by EC or indeed with the provisions of the Public Health (Control of Covid-19) Regulations issued by the Ministry of Health by holding processions on public roads, through towns, conducted massive rallies and ignored all other Standard Operating Procedures which led to several running battles between him and the officers of the Uganda Police Force.

I know that EC received a letter dated 4TH November 2020, from the Secretary General of The National Unity Platform (NUP), informing the EC that the party had organised an event to launch its Manifesto in Mbarara on 6th November 2020.

I am aware that Kyagulanyi did launch the Manifesto on the said day in Mbarara.

EC issued a revised campaign roadmap taking into consideration the lost period/time which had been occasioned by the countrywide Covid-19 lockdown and the fixed timelines of Article 61(2) of the constitution.

I know that the revised roadmap applied to all presidential candidates and that the Petitioner didn’t make a complaint regarding the period in the revised road map and participated in harmonizing his campaign program with those of other presidential candidates.

I know that EC held a meeting with Kyagulanyi on the 27th December 2020 and he was reminded to comply with the election guidelines in order to protect himself and the citizens of this country from contracting the Covid-19 virus.

Kyagulanyi had a meeting with the petitioner on 15th December 2020 which meeting was held pursuant to our invitation to Kyagulanyi dated 10th December 2020 where we invited him to discuss his persistent breach of election guidelines and standard operating procedures to control the spread of the Covid-19 pandemic.

I know that in the meeting held on 15 December 2020, we pointed out to Kyagulanyi that his continued failure and neglect to comply with the Standard Operating Procedures by insisting on holding mass rallies and travelling in large processions risked the lives of the people which had resulted in unwarranted occasional confrontations with security personnel.

We referred him to mass rallies at Iganga on 17th November 2020 and in Koboko on 8 December 2020; as well as countless processions he held or carried out enroute to his designated campaign venues as examples.

EC at the request of the Ministry of Health, held a meeting with Ministry of Health experts on 23rd December 2020, where the Ministry of Health experts expressed great concern over the manner in which political candidates and their supporters were conducting themselves during the campaigns; coupled with an upsurge in the transmission of Covid-19 and resultant deaths.

During the meeting the ministry of health experts categorised as high, sustained and defused transmission the districts/areas specified in the Petitioner’s affidavit.

Following this, EC suspended campaign meetings of all categories of elections in Kampala Capital City, Jinja City, Kabale, Kalungu, Masaka, Tororo, Luweero, Wakiso, Greater Mukono, Kasese and Kazo.

I know further that this decision applied to all candidates at all levels; presidential, parliamentary and local government councils.

That I know that the decision of the EC was judicially reviewed in High Court Miscellaneous Cause No. 393 of 2020 Elias Lukwago v the Electoral Commission where the high court held that the decision of EC was demonstrably justifiable due to the high infections of Covid-19 in those areas.

Arrests

That in response to paragraph 135 of the petitioner’s affidavit, the EC received a letter dated 4 January 2021 in which the petitioner informed the EC that members of his team had been arrested in Kalangala and demanded that the EC intervenes and ensures that they are freed immediately.

The EC has no power to interfere in the criminal justice system.

Bobi’s bodyguard Eddie Mutwe (L) after being arrested in Kalangala in December 2020

I have no knowledge of the blocking of the said app and the allegations as to its functionalities, but I know that it is the exclusive duty of the EC to ascertain, publish and declare in writing under its seal the results of the elections which the EC did.

I know that the petitioner had refused to sign the memorandum of understanding which required adherence to the Covid-19 Standard Operating Procedures and harmonised campaign program.

The EC could not allow the petitioner to have a revised campaign program while continuing to defy the Covid-19 Regulations and the harmonised campaign program.

I have no knowledge of the allegations therein, but I know that the EC fulfilled its mandate in providing each candidates with copies of the DR forms at all polling stations through their appointed agents.

Free and fair

I maintain that EC performed its functions under the Constitution independently, in accordance with the principles of a free and fair election and without any preferential treatment, in favour of or in discrimination of any candidate.

1 know that at all material times the petitioner was at liberty to hold campaigns in the prescribed manner but that the confrontations with the security officials was on account of his wilful disobedience of the law, his refusal to comply with Covid-19 regulations and Standard Operating Procedures, his insistence on having mass processions on public roads and addressing mass rallies contrary to the election

guidelines and that notwithstanding his defiance he was able to campaign throughout the country.

I noticed that the allegations therein are not related to any grounds in the petition and are false.

I know that it is the exclusive duty of the EC to ascertain, publish and declare in writing under its seal the results of the elections which the EC did.

I know that EC did not commit any offences or illegal practices, that the elections were free and fair and there is no justifiable reason at law or at fact to annul the presidential election 2021,

SWORN AT KAMPALA

BYABAKAMA MUGENYI SIMON

DEPONENT

Drawn and Filed By:

Kampala Associated Advocates

KAA House, Plot 41 Nakasero Road

  1. O. Box 9655 Kampala, Uganda

Tel.: +256 (31) 244100

Fax: +256 (41) 349654

E-mail: partners@kaa.co.ug



Source – ChimpReports

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