The continued arrests, detention and restriction of Dr Kizza Besigye’s movement by police are “deliberately” frustrating the FDC presidential candidate’s desire to challenge in court the results of the just-concluded presidential and parliamentary elections, lawyers have said.
In a Tuesday interview, Peter Walubiri told The Observer that by arresting Besigye, government was making it impracticable for him to file his petition within the constitutionally-mandated 10 days after results are announced. Results of the presidential election were announced on Saturday, February 20.
Announcing the results, Electoral Commission chairman Badru Kiggundu said President Yoweri Museveni won this year’s presidential election with 5,617,503 votes, representing 60.75 per cent, and Besigye garnered 3,270,290 votes representing 35.37 per cent while former prime minister Amama Mbabazi polled 132, 574 votes representing 1.43 per cent.
“He [Besigye] has only eight days now but he cannot meet his lawyers. He cannot meet his campaign managers and he cannot even meet with party officials. So, how can he collect evidence within the remaining days?” Walubiri asked.
According to Walubiri, collecting evidence to challenge a presidential election is a rigorous process, which takes a lot of time and resources.
“With Besigye arrested and other party officials in prison too, how can resources be mobilized? How can a legal team be assembled and be given instructions?” Walubiri asked.
Besigye was arrested for the fourth time in eight days, on Monday as he attempted to leave his home to go to the EC offices to collect the official results declaration forms he would use in a possible election petition.
In 2001 and 2006, Besigye’s petitions contesting President Museveni’s victories were thrown out by the Supreme court. The majority justices said the electoral malpractices committed by the NRM didn’t affect the outcome of the elections in a “substantive” manner.
On Monday, police chief Kale Kayihura said Besigye was arrested because he had not notified police three days in advance that he would be going to the EC as the law requires.
According to Besigye’s lawyer David Mpanga, the petition now hangs “in a balance” because the FDC offices have been cordoned off by security agencies.
“It’s very unfortunate because we have limited time and you have to collect evidence from the media, from agents and also from the EC yet we cannot meet the would-be petitioner [Besigye] and other party officials. It’s a joke,” Mpanga said.
Mpanga said he hadn’t met Besigye since election day on February 18. “We cannot access him, how can we get proper instructions?” he said.
According to retired Supreme court judge George Wilson Kanyeihamba, Besigye should petition court since all evidence shows that the election was rigged.
“With the massive disenfranchisement of voters in opposition strongholds like Kampala, Wakiso, Rukungiri and Gulu, how can that election be upheld. It was a sham,” he said.
Walubiri also said any election petition would be in favor of Besigye since the EC started declaring results yet voting was still going on in some areas of the country.
“What happened was a coup. That’s why the military is on the streets. The EC announced fake results but the court option of nullifying the results is being stifled by police,” he said,
Walubiri added: “What we are seeing is altered declaration forms, voter bribery and intimidation. Surely this was not an election.”
Erias Lukwago, the Kampala lord mayor, said he was skeptical of the court option from the start since the judiciary isn’t independent. “It was going to be very difficult with the kind of judiciary we have but now it’s impossible since Dr Besigye is in prison and he cannot access lawyers. And the party officials also cannot meet to discuss the way forward since they are being arrested by force,” he said.
But Kanyeihamba argued that Besigye should petition court. “We know that the judiciary isn’t independent but by filing the petition, you expose the judges because the vote rigging was glaring. No reasonable judge would uphold such an election,” Kanyeihamba said.
On Sunday, Col Besigye said he and President Museveni are still candidates until the 10 days prescribed in the law elapse without a petition challenging the results.Besigye said that he would go to the EC offices to collect the evidence, which he said will form the basis for his petition.
“Article 104 [of the constitution] provides for challenging the election,” Besigye told journalists at his home in Kasangati. “Nobody is conclusively elected unless that process of challenging the results has been disposed of or the option has not been taken up.”
When contacted on Tuesday, Ssemujju Ibrahim Nganda, the FDC spokesperson, said the party is yet to meet to make a decision.
“We tried to meet on Monday but the police didn’t allow us. We shall try to meet again today [Tuesday] and we shall give the way forward but it’s quite obvious that we are running out of time to file the petition,” Ssemujju said.
Asked why police is detaining Besigye without charging him, Fred Enanga, the police spokesperson, said that under “preventive arrest,” they can arrest anybody without preferring any charge.
“Besigye wants to create havoc in the city and as long as he wants to do that, he will be detained,” he said.
Enanga said the FDC offices were cordoned off by police because the party officials had requested for security.