KAMPALA – On October 12 2011, Muhammed Muwanga Kivumbi, a parliamentary candidate for the Butambala Constituency petitioned court seeking to nullify the election of his rival Faisal Kikulukunyu.
In his petition, filed against both the Electoral Commission (EC), the first respondent and Kikulukunyu, the second respondent, Muwanga Kivumbi argued that Kikulukunyu bribed voters to win the February 18 election.
“The second respondent personally or through his agents, with his knowledge, consent or approval, offered or caused to be offered to registered voters various gifts including, but not limited to, money, cosmetics, steamers, foodstuffs, cows and footballs with a view of procuring voters to vote for him,” Kivumbi’s petition reads in part.
The EC was accused of failing to deter Kikulukunyu from breaking the law and therefore “compromised the principles of impartiality and transparency when it failed to restrain the second respondent from carrying out illegal activities during the campaign period.”
Ultimately, court nullified the election. Muwanga Kivumbi won the by-election held on September 12, 2012.
Article 68 of the Parliamentary Elections Act, 2005, stipulates that “A person who, either before or during an election with intent, either directly or indirectly to influence another person to vote or to refrain from voting for any candidate, gives or provides or causes to be given or provided any money, gift or other consideration to that other person, commits the offence of bribery and is liable on conviction to a fine not exceeding seventy two currency points or imprisonment not exceeding three years or both.”
The same article states that a candidate or candidate’s agent who, by himself or herself or any other person, directly or indirectly, before the close of polls on polling day offers, procures or provides or promises to procure or provide any alcoholic beverage to any person commits an illegal practice. And (2) states that a person who during the campaign in respect of an election, solicits from a candidate or a candidate’s agent any money, gift, alcoholic beverage or other consideration in return for directly or indirectly influencing another person to vote or refraining from voting for a candidate or in consideration for his or her voting for the candidate or not voting for another candidate, commits an illegal practice.”
On record, the 2011 election had the highest prevalence of bribery and commercialization of elections. After the election, the Electoral Commission tabled a report in Parliament raising concerns over the two vices, which they say shrouded the exercise. Later, Afrobarometer, an independent research network, which measures public attitudes, on economic, political, and social matters in Africa conducted a survey, which revealed that four out of 10 (41%) Ugandans say a candidate or someone from a political party offered them food, a gift or money in return for their vote at the 2011 general election.
While the law prescribes imprisonment for a period not exceeding two years or a fine not exceeding 48 currency points for someone found guilty of bribery as per the Parliamentary Elections Act, Justice Musoke-Kibuka, in the matter between Muwanga Kivumbi and Kikulukunyu did not sentence nor fine the respondent. The High Court judge ruled that Kivumbi proved that Kikulukunyu committed illegal practices during the campaign period, and as such quoted sections 61(1)(c) and 63(4)(c) of the Parliamentary Elections Act, Cap. 141, to annul the election of Kikulukunyu. The judge also ordered a by-election in the constituency. He further ordered that Kivumbi recovers his election petition costsfrom Kikulukunyu.
Interviewed for this story, lawyer Allan Sserulika of Nsubuga and Co Advocates, weighed in on why court preferred to order a re-election rather than a sentence or fine for Kikulukunyu.
“The judge warned himself about the danger of lies being peddled by those giving evidence as they are normally supporters of the petitioning candidate. Therefore, court needs to act only on cogent evidence,” Sserulika states.
He adds that court also ruled bearing in mind that an election petition is a civil matter and thereforeevidence presented needs to be examined on the balance of probabilities, unlike criminal cases where proof should be beyond reasonable doubt.
“Therefore whereas as the 2nd respondent was found guilty of electoral offences (upon proof on a balance of probabilities) it was in my opinion wrong not to subject him to a fine, however small it may have been. At least the court should have cautioned him.,” Sserulika states.
He, however, thinks that asking the respondent to meet the costs of the petitioner could be heavier than just paying a fine. “You may find that such a fine compared to costs to be paid, its peanuts.”
The Kampala-based lawyer opines that lack of deterring consequences for the guilty perhaps explains why the vice continues to eat deep into Uganda’s electoral processes. He proposes heavier repercussions: “On the whole, there should be serious punishment for voter bribery. I also think the standard of proof should be brought to the same level as that in criminal matters and the punishment too should be serious.”
He suggests a ban from politics for the rest of one’s life or 10 years minimum. “Without serious punishment, politics will continue to be expensive and the stakes will continue to rise, leading to more violence,” he concludes.
The law notwithstanding, divorcing money from politics in Uganda to date still remains a hard nut to crack. Many candidates we spoke to for this article have admitted it is almost impossible to run a political campaign in Uganda without spending colossal amounts of money. It is now a culture that politicians have to reward voters for their support.
During the Afrobarometer survey, respondents said the election period is a time to give and to take for both the voters and candidates. While many Ugandans disapprove of vote buying by politicians, only about four in 10 (39%) say it is “wrong and punishable” for voters to accept money for their votes, the survey indicates, adding that more than one-third (36%) say it is “wrong but understandable” for voters to accept money, and about one-fourth (24%) consider vote selling “not wrong at all”.
With respect to vote buying, urban residents (61%), men (59%), economically better-off individuals (59%-62%), and citizens with secondary (60%) or post-secondary (64%) education are more likely than their counterparts to say it is unlawful and punishable for a candidate or political party official to offer money in return for a vote. Respondents with no formal education are particularly likely to consider the practice “wrong but understandable” (36%) or “not wrong at all” (26%).
The expectations of handouts in elections cuts across different age groups and political party affiliations, the survey found. Almost three-fourths (73%) of residents in the Western Region disapprove of paying for votes twice as many as in the Eastern Region (36%). When it comes to vote selling, rural residents, men, the poorest citizens, more educated respondents, and older people are somewhat more likely to disapprove, but differences and patterns are less pronounced than for attitudes toward vote buying.
The hardest hit in this dilemma of voter bribery remains the tax payer. Like in the case of Muwanga Kivumbi Vs Kikulukunyu, most petitions have ended in court ordering a by-election, which is conducted at the cost of the tax payer. More so, political and economy analysts argue that voter bribery fosters an environment of corruption that impedes economic development, political accountability, and the provision of public goods.
In his paper ‘Commercialisation of Politics and its Impact on an Already Strained Economy’ Jeff Mbanga notes that politicians look at acquisition of power as the key to advance their economic interests. Because of this consideration, therefore, politicians do not see spending on voters as an expenditure. Rather it is seen as an investment. As such they are willing to take huge loans and/or sell their valuable property such as houses and land to get money to run an election campaign. The end result is that they spend their term in office looking to recover this money and get more to spend in the next election, rather than delivering on their mandates.
Yet with all this, the vice continues to prevail in every election For instance, a candidate in Kasubi, in Lubaga Division, Kampala recently supplied water tanks to his voters to win votes. Also, a voter from Bukwali Parish, Fort Portal city recounts how candidates gave out Shs2,000 to voters to switch sides during the September 2020 NRM primaries.
The voter bribery that dotted the NRM primaries in September 2020 is documented in a report by the Citizens’ Coalition for Electoral Democracy in Uganda (CCEDU) who deployed an observer at each of the 2,062 sub-counties to witness the NRM parliamentary primary elections.
The report notes that at 1,096 polling stations observed, voters were bribed with as low as Shs1,000, some Shs2,000, others Shs5,000, Shs10,000 and the groups of boda bodas were being given fuel at petrol stations, women groups, youth groups and SACCOs got Shs50,000.
The observers at all the 1,096 polling stations witnessed that after receiving the bribe, voters’ were shown who to vote for.
It was also observed that voters took funds from more than one candidate and in the end a number of voters decided to keep away from the polls.
Like in the case of the NRM primaries, evidence of giving money to voters came up in the matter between Muwanga Kivumbi and Kikulukunyu in 2011. A key witness, Muhabuba Ssegirinya swore an affidavit that Kikulukunyu went to Gombe mosque around Christmas time, 2010 and addressed the gathering. He then got out Shs.100,000 which he gave to Ssegirinya to distribute to each person present so that they would vote for him on polling day.
Ssegirinya told court that he wrote down the names of those present. He found out that they were 101 in all, including himself. He then proceeded to distribute the money giving Shs1,000 to each person. He also gave himself Shs1,000. One Haji Sulaimani Kitaka, whose name had been written down missed out because he had left the place before the distribution was done.
Two other witnesses Aziza Namutebi and Ahamed Mutesasira swore affidavits corroborating this recount of events. They both confirmed they were present at the mosque at Gombe when Kikulukunyu gave the money to Ssegirinya and that they were beneficiaries She says they were told the money was a Christmas gift so that they vote for him.
Another witness, Kamulegeya Siraje, swore an affidavit, stating that Kikulukunyu gave shs.50,000/= to the LCI, Chairman, Nsozibirye Village, Ssekanjako Baker, to buy a steamer lamp in appreciation of the support from residents. During a campaign rally, Ssekanjako showed the money to the people, saying that Kikulukunyu requested for the residents’ votes and promised to give them more if they voted him as their Member of Parliament.
Court was told that the chairman has since bought the steamer which is used at various functions in the community.
Kamulegeya’s affidavit was never challenged in rebuttal.
Where politicians have not handed out physical cash or gifts, they have been documented to substitute government service delivery by providing what the government should do for the people. Many have been seen paying to drill a borehole, repair a broken culvert or put beds in a health center in return for votes. Many others have been seen influencing government organisations like power suppliers to proritise their areas so as to ride on government programmes to win votes.
_This report has been developed with the support of the Uganda Editors’ Guild, Public Affairs Reporting Project; firstname.lastname@example.org_