In Summary
  • Reforms. In 2015, the ruling National Resistance Movement and six other parties with representation in Parliament at the time agreed on more than 40 proposed electoral reforms that they said would ensure free and fair elections in 2016. But almost five years later, they are yet to be implemented, writes Stephen Kafeero.

Time is running out for Uganda to enact meaningful electoral reforms ahead of the 2021 general elections, but the Executive, which holds the key, is in no hurry to act.
On June 25, the Supreme Court issued another deadline to the Attorney General (AG) more than three years after the first directive was not fully implemented. The Executive, in the latest decision, has only a month to act on the Supreme Court recommendations having made insufficient action in the first two-year deadline.

The one-month court deadline followed a petition in March by law dons Prof Frederick Ssempebwa, Prof Fredrick Jjuuko, and a regional organisation for constitutional development (Kituo Cha Katiba) challenging the Attorney General’s failure to follow through the 10 recommendations the Supreme Court made following the 2016 polls.
The petition was informed by the Supreme Court ruling in a presidential election petition filed by former presidential candidate Amama Mbabazi against President Museveni in 2016 which laid out recommendations that would improve the 2021 general election and beyond.

The Supreme Court recommendations include, among other things, a prohibition of donations during elections, the regulation of the use of technology during elections and regulating the role of public officials in the political campaigns.
In that ruling, the court also directed the AG to follow up these recommendations and report back to court within two years. The law dons had sought declarations that the AG is acting in contempt of court by neglecting, refusing and or refusing to implement the said orders.

In their latest ruling, Justices Stella Arach-Amoko, Eldad Mwangusya, Rubby Opio-Aweri, Faith Mwondha, Paul Mugamba, Richard Buteera and Augustine Nshimye appear to have aimed for a win-win situation for both sides denying the petitioners an outright declaration but also granting the AG another opportunity to move on the directive of the court.
The ball is once again in the government’s court to implement the directives of the highest court in the land.

Fundamental questions
Beyond the court’s recommendations, however, there are other fundamental questions such as which kind of poll reforms government will table and whether they will reflect the aspirations of Ugandans who have over the years made proposals that have been largely ignored.
The government’s time and tasted tactic has been to push the process into a crisis mode by dilly dallying as much as possible to a point that it is impossible to organise the scheduled elections on time and enact the said reforms.

The script follows that reforms will be enacted in the next election cycle. Both government and civil society including the media and general public somewhat contribute to what happens next. Once an election is done, the ruling establishment relaxes or heads to the drawing board to plan how to manipulate the process again while the other groups turn down the pressure due to apathy, loss of funding interest and other priorities. A year or two to the next polls they wake up from the slumber and the old script is followed.
Shadow Attorney General and Ndorwa County East legislator Wilfred Niwagaba told Sunday Monitor in an interview that he is in the process of once again moving the House on poll reforms.

“We are scheduled to see the Speaker on Tuesday morning to see whether we can be accommodated on the order paper next week to bring our motion which has been ready and duly lodged with the clerk to Parliament since January 19,” he said.
He explained that the time given by Speaker Rebecca Kadaga to the Executive arm of government expired on April 30. At this point, he says, he approached the Deputy Speaker since Ms Kadaga was indisposed at the time. Deputy Speaker Jacob Oulanyah again extended time to government until end of May, a deadline which government did not heed.

“There is no political will on part of President Museveni to have electoral reforms that would enhance democracy because essentially he remains a military leader and the claim that he retired and is now a civilian is a hoax as he is not civil,” Mr Niwagaba said.
He added: “It is up to Ugandans to continue pressurising their leaders, especially parliamentarians to have electoral reforms that would make our governance predictable, democratic, free and fair for proper service delivery and overall development.”

Mr Niwagaba says there is a stark difference between what the Opposition intends to bring before the House and government proposals.
“Moreover, the government Bills being proposed have no connection to ours since ours begin with the constitutional amendments and subsequently other laws affected, namely Presidential, Parliamentary Elections Acts and Electoral Commission Act,” he says.

The Niwagaba Bill is expected to seek the introduction of federal governments, reinstatement of presidential term limits, and a new method to appoint the Electoral Commission to ensure its independence, among other things. It also seeks to have majority and minority leaders of Parliament, among other things.

We put these issues and concerns to both the Attorney General William Byaruhanga and his deputy Mwesigwa Rukutana but they were yet to respond to our calls and messages by press time.
Before the latest Supreme Court ruling, government had asserted that some of the recommended reforms were addressed in 2017 when Parliament enacted the Constitutional Amendment Act, 2017.

The Act, largely shrouded by the elimination of the Presidential Age Limit, amended the Constitution to provide for the time within which to hold presidential, parliamentary and local government council elections, provide for the term of Parliament, and provide for eligibility requirements for a person to be elected as president or district chairperson and others.

The amendment achieved one of the Inter-Party Organisation for Dialogue (IPOD) proposals which saw the increase of the number of days within which to file and determine a presidential election petition and the number of days within which the EC is required to hold a fresh election where a presidential election is annulled.
Government is expected to make Bills for the amendments to different Acts including the Presidential Elections Act, The Local Governments Act, The Electoral Commissions Act, The Parliamentary Elections Act and the National Youth Council Act.

In January, Justice and Constitutional Affairs minister Kahinda Otafiire said draft Bills to implement other Supreme Court recommendations such as on the nature of evidence, use of technology, unequal use of State owned media, donations during the election period, the involvement of public officers in political campaigns and the role of the Attorney General in election petitions were ready, pending a review by the Cabinet.

To address matters relating to elections, government had taken the position of first reviewing and subsequently amending the 1995 Constitution before introducing the electoral reform Bills.
In a May 23 letter, government named 14 people to sit on the Constitutional Review Commission to consider various constitutional reforms.

Former Attorney General, Prof Khiddu Makubuya, was named to chair the commission deputised by former speaker of Parliament and retired diplomat Francis Butagira.
Other members are former legislators Nusura Tiperu Omar and Sarah Nyirabashitsi Mateke, Rev Amos Turyahabwe, lawyers Paul Wanyoto, Diana Musoke, Charles Elem Ogwal and Dan Wandera Ogalo, Mr Richard Angualia, Ms Lillian Aber, Kamdi Byonabye, Ms Martha Katuntu and Kabogozza Musoke.

EC dilemma
Any proposed electoral reforms outside those likely to be tabled by government have serious implications on how the Electoral Commission, the election arbiter, is constituted and operates.
The last time government suggested any reforms at the electoral body despite different calls and proposals was to change the name of the electoral body from simply Electoral Commission to Independent Electoral Commission.

In 2015, the ruling National Resistance Movement (NRM) and six other parties with representation in Parliament at the time agreed on more than 40 proposed electoral reforms that they said would ensure free and fair elections in 2016.
Most of these proposals directly relate to the operations of the EC but are, almost five years later, yet to be implemented.

The proposals, among others, include granting powers to the Judicial Service Commission to appoint a selection committee which will identify suitable candidates as members of the EC to be endorsed by the President, increasing the number of members of the EC from seven to nine and their term restricted to seven years, make the appointment process of the members of the EC more transparent and inclusive by having the selection committee invite the registered political parties, professional bodies, civil society and the general public to nominate persons for appointment to the commission.

Others include requiring the EC to formulate voter education programmes jointly with the political parties and implement them continuously at least one year to elections, public officers who wish to stand for elective positions at local government to take leave and not resign, increase nomination days for presidential elections from two to three and the EC to consult the political parties before extending the time within which to perform certain acts.

The current EC setup, which has been contested for the past more than two decades, has already drawn up a roadmap which presupposes that any reforms will have been enacted by February to give the electoral body sufficient time to prepare before the election. Four months past and there is still no sign of reforms.

“True in our strategic plan we made a recommendation on the timeline for any amendments, among others. Obviously you know the Commission has never failed to organise an election on account of limited time. However, it’s our wish that whatever amendments being planned are done in time to allow us time also to implement them,” Jotham Taremwa, the EC spokesman, said in response to our inquiry.

Supreme Court recommendations

1. Increase of time to file presidential election petition and it being determined from 30 days to 60.

2. Allow oral evidence be used in presidential elections as opposed to only affidavits.

3. Enlarge the time to hold fresh presidential elections in case of annulment from 20 days.

4. If there is introduction of technology to aid elections, the same should be introduced well within time to train the officials and sensitise voters on how it works.

5. Amend electoral laws to provide for all presidential candidates equal time and space on State owned media to present their programmes.

6. Enact a law to prohibit the giving of donations etc. by all candidates including the President in order to create a level playing field for all.

7. Enact a law to make it explicit that public servants are prohibited from involvement in political campaigns and law be enacted to permit the AG to be joined as a respondent in presidential petitions.