VII. Political and Practical Obstacles to Prosecution

Lawyers, judges, government officials, and police interviewed by Human Rights Watch provided numerous reasons for why serious electoral offenses and criminal acts committed in connection with elections are rarely prosecuted in Uganda.

Some said that the judiciary and the legal community are extremely focused on the resolution of electoral petitions in the post-election period, which diminishes attention to criminal prosecutions and creates limited political will to begin investigations into criminal acts and electoral offenses.[57] Others noted that there is not a focus on holding candidates personally to account for wrongdoing, despite the findings of the courts in electoral petitions. According to one academic, "electoral petitions are ultimately more concerned with the political survival of the politicians than integrity of the electoral process."[58] One current government official told Human Rights Watch that there is an unspoken effort to "balance things" and that judges would set aside election results as a form of punishment but then say, "Let's not worry about the criminal matter and let it go."[59]

Electoral Commission staff and police also said that, in some instances, witnesses and aggrieved parties were harder to track down once elections had been ultimately decided.[60] In 2006 members of the judiciary reported that interest in many complaints filed before election day ceased following the elections, resulting in the suspension of court proceedings due to the withdrawal of the case by complainants.[61]

Lawyers who have filed electoral petitions on behalf of candidates often pointed to the provisions of the Electoral Acts as a barrier to accountability. Because bringing charges under the Electoral Acts requires the sanction of the director of public prosecutions (DPP), who is appointed by the president and approved by parliament, several lawyers said that there would be tremendous reluctance by the DPP to bring charges against anyone very high ranking within the ruling party.[62] This was often cited as the main reason why individuals such as Kivejinja and Mbabazi, powerful people from the NRM, have not faced prosecution, despite High Court determinations of wrongdoing during campaigns.[63]

Apparently Politically Motivated Prosecutions during Elections

Human Rights Watch research shows that during the 2006 elections, the government selectively applied laws of sedition, libel, and incitement to violence to harass opposition candidates and disrupt their campaigning.[64] Police and the director of public prosecutions put significant financial and human resources into bringing those charges. Opposition parliamentarians and senior party members faced multiple apparently politically motivated criminal charges.

FDC member Winnie Byanyima and FDC party treasurer Jack Sabiiti were charged on January 24, 2006, with giving false information and criminal libel after they wrote privately to Chief Justice Benjamin Odoki asking him to investigate allegations of bribery of high court judges by Col. Leo Kyanda, then chief of military intelligence. The day the two were brought to the police, President Museveni wrote in The New Vision newspaper to say that the letter included a "glaring falsehood, which [is], no doubt, aimed at arousing disaffection and ill will against the person of the President and the democratically elected Movement government.[65]

FDC members of parliament, Ronald Reagan Okumu and Michael Ocula, were charged with murder and later acquitted.[66] On January 9, 2006, the High Court hearing the murder case against these elected officials harshly reprimanded the prosecution, holding, "The evidence tendered by the prosecution shows clearly that it is a crude and amateur attempt at creative work."[67]

By the end of 2005, presidential contender Besigye was facing three separate prosecutions for treason, terrorism (at one point charged before both the civilian and military court at the same time), and rape.

When acquitting Besigye of rape charges, Judge Katutsi wrote that "the evidence before this court is … monstrous if to ruin the honour of a man who offered himself as a candidate for the highest office of this country."[68] The court focuses much of the ruling on the poor police work, stating that the way "investigations were conducted and carried out is that it was 'crude and amateurish' and betrays the intentions behind this case."[69]

Besigye attempted to bring a private criminal prosecution against the head of the Criminal Investigations Department who allegedly investigated the case for falsification of a register, conspiracy to defeat justice and abduction, but, as is allowed by law, the case was taken over by the public prosecutor, who dropped the charges.[70]

The 2005 criminal charge of treason, for alleged involvement in rebel activity, against Besigye has not been resolved. He is still required to report to police and his passport is still held by the courts as a condition of his bail.[71] If those charges are serious enough to warrant prosecution, the relevant government authorities should address the matter. If that charge remains unresolved and only comes to the fore once campaigning is underway, this will reinforce the notion that this prosecution is politically motivated and only used to destabilize the opposition during elections.

While the objective of these cases may have been to divert attention, resources, and time of the opposition from the campaign, the cases also represent a significant drain of time and resources on the police, public prosecutors, and judges. Given limited resources, these cases may have contributed to a lack of accountability for other, more well-founded, prosecutions.

Lack of Clear Mechanism for Incident Tracking

During the 2006 elections, for the first time, the Electoral Commission had a complaints desk with an officer in each district to receive and record complaints, but there were no laws promulgated to structure their duties and mandate. The Electoral Commission and the complaints desk officers lack any legal power to sanction individuals who commit electoral offenses but they often received complaints from victims.

Unpublished reports documenting the work of the complaints desk indicates that officers were very busy fielding a variety of concerns from the community, but the exact parameters and courses of action remains unclear. Generally, it appears that complaints officers took one of three courses of action when presented with a complaint: either they would arbitrate resolutions through referral to District Election Liaison Committees,[72] refer the matter to Electoral Commission headquarters, or refer electoral offenses to police and then possibly serve as witnesses if subsequent criminal cases proceeded. Clear records of action and the ultimate results of electoral complaints from 2006 are not available. It is unclear what factors were involved in selecting one of the three paths.

District Election Liaison Committees serve as an informal dispute resolution mechanism, and Ugandan law does not contain provisions for their existence. The resolution of certain crimes through arbitration can lead to disparate results and potentially obstruct bringing perpetrators of offenses to account. For example, two parties standing before the District Election Liaison Committee in Adjumani, each accusing the other of bribery, agreed to "put aside" the issue, effectively absolving either party of any guilt through a mutual admission of wrongdoing.[73] In contrast, if the case had been referred to police, both parties could have been prosecuted. In other instances documented by the Complaints desk, a complaint defined as "protest against intimidation" was addressed by a local peace committee and not referred to police for further investigation.[74]

According to the Chairman of the ElectoralCommission, Dr. Badru Kiggundu, accountability during elections is a serious challenge. He said that bribery and intimidation are the most frequent problems affecting the outcome of the elections, but that he has limited powers to prevent offenses from taking place or holding candidates to account.[75]

Dr. Kiggundu cited one example in which his agents caught a candidate in 2006 doling out half-kilo bags of sugar to voters at 2 a.m. "We called the police and the police took him in until 4 a.m. until he signed an admission, and registered a bond. The following day he was back at the polling station, and he continued to participate."[76]

Given the significant backlog of cases awaiting adjudication in the Ugandan judicial system, electoral offenses that are unlikely to affect the outcome of the election may be more appropriate for arbitration or mediation than criminal prosecution. Offenses such as defacing a poster, for example, are minor enough to be addressed via arbitration and paying a fine, rather than a full-fledged criminal prosecution. Consideration should be given to de-criminalizing some electoral offenses, and the circumstances in which complaints are referred for criminal prosecution or arbitration should be made clear. Serious crimes, especially those by candidates, such as bribing or intimidating voters should be taken directly to police who should actively pursue the matter in a non-partisan way.

The Electoral Commission does not track cases of electoral offenses or politically motivated crimes after they refer them to the police for investigation. The Electoral Commission's official report to parliament from the 2006 elections, for example, does not indicate how many of the registered complaints led to reports to police. According to Chairman Kiggundu, he cannot tell what transpires after the Commission hands cases over to police.[77] The Commission currently lacks the capacity to track where the case goes or if it leads to a prosecution.

Some basic statistics on electoral offenses, arrests, and convictions, which were recorded in the Electoral Commission's 2001 report to parliament, were noticeably absent from the Electoral Commission's 2006 report.[78] This is noteworthy in that 2006 was the first year there was both a formal complaints desk and a specific squad in the police to investigate electoral offenses.[79]

Some experts pointed out it is still not clear if individuals seeking a remedy as victims of criminal wrongdoing, such as intimidation, during an election are required to report their problem to both the complaints desk and police or only one institution.[80] The police themselves can initiate investigations without notifying the Electoral Commission. According to police records from January 30, 2006-several weeks before polling day-the ruling NRM had 135 complaints made against it, the Forum for Democratic Change (FDC) 65 complaints, the Democratic Party (DP) 8, and there were 70 general cases.[81] Despite repeated attempts, Human Rights Watch was unable to secure from police exactly how many cases were referred to the Public Prosecutor, much less how many led to convictions in 2006.

The director of the public prosecutor (DPP) also does not keep clear records for prosecutions and convictions of electoral offenses or criminal violence associated with elections. The DPP's office could point to two cases from 2006 where two individuals were convicted of defacing posters.[82] Human Rights Watch could not find any indication that anyone, other than Lt. Ramadan Magara, was convicted for a violent act stemming from the 2006 elections.

Better tracking of investigations by all parties-the Electoral Commission, Police, and the Office of the Director of Public Prosecutor-would encourage accountability, increase the nonpartisan enforcement of laws, and prevent cases from falling through the cracks during the heightened tension of elections. It would also increase the chance that accountability during the campaign period would serve as a deterrent to other would-be perpetrators on polling day. Legislators should develop clear parameters when electoral offenses may be arbitrated through District Election Liaison Committees instead of being brought to the attention of the police as required by law.

Short Statute of Limitations on Electoral Offenses

There is no statute of limitations in Ugandan law on criminal acts defined in the penal code. However, under the Presidential and Parliamentary Elections Act, prosecution of electoral offenses-acts that include serious threats to electoral integrity such as bribery and intimidation of voters-must occur within either three months of the alleged act or one month following a judicial finding of an offense through the trial of an electoral petition.[83]The short time period curtails the right to an effective remedy for the violation of their rights, as protected under international law,[84] and potentially damages efforts by the state to combat impunity. The police commissioner and the public prosecutor told Human Rights Watch that the three-month limit is a serious impediment to the prosecution of electoral offenses.[85]

Although there are no international legal standards on statutes of limitations (time limits for bringing a prosecution) for electoral offenses,[86] the statutes of other African countries' laws provide some comparative examples of time limits for prosecuting electoral offenses. In comparison with South Africa, Malawi, Tanzania, Kenya, and Zambia, Uganda's statute of limitations on electoral offenses is the shortest by a significant margin. Human Rights Watch is not aware of any African country with a shorter statute of limitations for electoral offenses.

In South Africa,[87] Malawi,[88] Tanzania,[89] and Kenya,[90] electoral offenses are defined in the countries' election laws, and the national criminal procedure codes apply to their criminal prosecution. The South African criminal procedure act sets the time limit to commence criminal proceedings generally at 20 years after the alleged act.[91] Malawi,[92] Tanzania,[93] and Kenya[94] have no statutes of limitation stipulating the time within which proceedings must begin for crimes generally or for electoral offenses specifically, meaning that criminal prosecution of electoral offenses can be brought at any time after the commission of the alleged act.

Zambia, which does create a specific provision on a statute of limitations on electoral offenses in its election law, states that criminal charges with relation to an electoral offense must be filed within one year from the date of commission of the alleged act.[95]

The statute of limitation in Ugandan law may have been written with the idea of expediency in relation to the electoral process in mind. However, electoral offenses should be treated as a matter separate from civil disputes concerning elections results or vote tallying, for which expediency is of appropriately heightened concern.