By Brian Kisomose
The Supreme Court of Uganda in 2016 made ten recommendations to improve general elections in Uganda. This was a result of a ruling in a presidential election petition filed by former presidential candidate Amama Mbabazi against president Museveni in 2016. The recommendations were aimed at improving the 2021 general elections and beyond, as to whether elections will improve or not it’s a question of fact.
The bigger task however, May not necessary be the implementation of the recommendations but rather understanding and examining the implications of the recommendations. Upon understanding the implications then one will be better placed to reason why the executive is still reluctant to implement the said reforms. This has also prompted the same court to issue another deadline following a petition by some concerned parties.
Among the ten recommendations made by the honorable court one that is of great effect is allowing oral evidence to be used in election petition cases as opposed to only affidavits. Oral evidence basically means spoken evidence given by a witness in court while affidavit evidence is written and the witness may not have to give the same orally. Oral evidence basically requires the physical presence of a witness in court as opposed to affidavit evidence where a witness may only appear if required to be cross examined on the same.
The question to be resolved under this recommendation is whether it will be mandatory to give oral evidence or it will be optional for one to either give oral or stick to affidavit evidence. The trend has always been that former presidential candidates after elections are always put under preventive arrests or detained by restraining their movements from their homes which bars them from diligently following up their cases.
Implementation of the recommendation of having parties to the case give oral testimonies if made mandatory, most of the parties especially those opposing the elections will be an opportunity for them to ensure that they leave their homes and appear in court which may not be the interest of the state.
I am mindful of the fact that recently the judiciary launched virtual court arrangement where a suspect is tried via video conferencing this was tested during the hearing of Hon. Robert Kyagulanyi’s bail application. Chances are very high that this innovation will be very vital during the post-election period where litigation as a result of discontentment about the presidential elections is inevitable.
Even when permitting oral evidence may be made mandatory it will be suppressed by this innovation. What the petitioners or those opposing and also perhaps the public their interest would be the physical appearance of the litigant or petitioner before a panel of judges and be led by their counsel and give their oral evidence in court.
The judiciary will also have to clarify as and when video conferencing is applicable in the court process and under what circumstances because for Hon. Kyagulanyi’s matter he was in detention or confinement in luzira prison, this is different from confinement at one’s own home under the disguise of preventive arrest as its always termed by the coercive arms of government.
Petitioners may insist on oral testimonies which court may grant but via video conferencing. The lacuna I envisage will be whether this will be practicable where the petition is confined at his or her place of residence. Will the equipment be then assembled at the litigant’s home or the petitioner will have to be taken to luzira where the innovation is manned.
Having it assembled at one’s home that is not a gazetted place of detention will automatically raise constitutional issues such as the right to privacy, liberty among others. This then will lead to one option of finding a way of arresting such litigants detain them at Luzira and conduct their election petitions via video conferencing.
The writer is a Programme Officer
Pro-Bono Department – Uganda Law Society & a Practicing Advocate.