UGANDA’S LAWS DONT FAVOR SCIENTIFIC ELECTIONS
By Goodluck Musinguzi
Voices against the scientific voting in Uganda are increasing day by day. Gen Henry Tumukunde one of the Presidential Aspirants says the Electoral Commission should not insist conducting an election amidst a pandemic.
“In the unfortunate event that the Electoral Commission team is attacked with the pandemic, and the whole leadership has to be quarantined in the
middle of the Electoral process, what will then happen to the Elections?”, Tumukunde asked
Until recently, Lt Gen Henry Tumukunde was a powerful Minister of Security in the current government led by President Yoweri Museveni but have parted ways hence the challenge.
Lt Gen Tumukunde and team quoted different sections of the constitution which makes holding the scientific/digital election to be against the law.
Article 77(4) of the constitution of Uganda says “where there exists a state of war or state of emergence which would prevent a normal general Election from being held, Parliament may, by resolution supported by not less than two thirds of all members of Parliament extend the life of Parliament for a period not exceeding six months at a time.”
He said its hard to fulfill conditions of the coming elections without breaking the law.
“The spirit of Section 3 of the Presidential Elections Act is intended to enable an intending candidate move around the country consulting the voters on his/her candidature, be able to prepare a manifesto which is the social contract between the candidate and the electorate”.
The candidate is expected to raise funds for his/her campaigns, convene meetings of the national delegates and recruit agents to monitor the over 36,000 polling stations throughout the country.
The Constitution and other electoral laws are designed to ensure that the Electoral process is a free physical interaction between the voters and the voted as a basis for informed decision and to ensure a free and fair election based on tenets of representative democracy.
Gen Tumukunde said he was imprisoned before he could carry out nation wide consultations and the lockdown complicated everything even when he is out of prison on bail.
“I communicated my desire to conduct nationwide consultation on 3 rd March 2020 in line with section 3 of the Presidential Elections Act, which is one of the most fundamental legal and constitutional rights for Ugandans who enjoy the right to vote and be voted”.
He says before I could start any consultation, he was arrested on the 12 th March 2020 on tramped up and politically motivated charges, remanded to Luzira prison where he spent over two months before I could secure bail.
When in prison, the Government declared a total lockdown of the country and this situation persisted up to the time he released on bail on the 11 th May 2020, and still persists with minimal modifications to date.
Gen Tumukunde says the above conditions have since disrupted his planned schedule for nationwide consultations as well as other activities as envisaged under the law that his team had scheduled to carry out for the other electoral processes to follow.
On the 16 th May 2020, the Electoral Commission released a revised roadmap providing for a scientific/Digital election campaign process. In the said roadmap, there is no provision made for the consultation process as provided for under the Presidential Elections Act with its attendant activities which forms the bedrock of a free and fair Election as guaranteed under the Constitution.
Any circumstances that fundamentally change the normal functioning of a General Election as laid out in the Constitution and other Electoral laws create a “NOT NORMAL” situation. Such not normal situation is also catered for under the Constitution and a scientific/Digital innovation by EC is not a remedy provided for under the Constitution.
It is our opinion based on the existing laws that the notion of a scientific campaign and electoral process as alluded to by the Electoral Commission has no basis in law, and is a violation on the Constitutional rights ofUgandans.
Section 50 of the Electoral Commissions Act which the Commission seeks to rely on does not apply to such Electoral rights andprovisions that are enshrined in the Constitution and should not override specific Electoral laws but rather facilitate and not inhibit their application.
Section 10 of the Presidential Elections Act requires among others that for one to be validly nominated for President, he or she should be supported by not less than 100 voters in each of at least two thirds of all districts in Uganda.
In his submission to the Electoral Commission Chairman, He says the import of the above provision is that an intending candidate prior to nomination must be able to freely move around the districts of Uganda to market his/her ideas, interact with and mobilize the intended voters, to be validly nominated.
This is not expected to be a virtual or scientific/digital, but a real process.
The roadmap thus as proposed by the Electoral Commission in its current form does not provide for or enable an intending candidate gather the relevant secondment signatures provided for under the law.
Undoubtedly, the curfew, which has reduced the working hours in a day to less than 8 and movement restrictions, make it legally and practically impossible to conduct a credible, legitimate, free and fair election as envisaged under the law.
Whereas we appreciate the ingenuity demonstrated by the Electoral Commission to have the elections at all costs, we wish to point out that the same is alien to our existing electoral legal framework and that the Electoral Commission does not have the legal mandate to selectively choose which rights as enshrined under the Constitution and other laws should be enjoyed by the voters and candidates and which ones should be forfeited.
The idea of a campaign process based on print, electronic and online media as proposed by the Electoral Commission is a worthy innovation but legally void and practically untenable and is a violation of a number of rights as enshrined under the law.
It is our opinion the electoral Commission is not legally mandated to determine the medium of campaign the candidates should use in their campaign process but rather the law in its current form is clear on what the candidates should do.
Section 21 and 22 of the Presidential Elections Act provides that every candidate shall conduct individual public campaigns in every district of Uganda, hold consultative meetings with their agents throughout Uganda and the role of the EC is to receive and harmonize the candidates’ campaign programs as submitted and provide security, protection and facilitation to the candidates and their meetings.
The law and political prudence section 50 of the Electoral Commissions Act inclusive does not grant the Electoral Commission mandate to change the electoral process but rather implement the same as an election is not an event but a process and every step as designed under the law is core to the enjoyment and delivery of a free and fair election.
Mr. Chairman, our opinion is that it is erroneous for the EC to base an election on non-existent infrastructure or infrastructure not within its legal control as the EC does not own any radio stations, televisions, print media and online sites in every district and home of every registered voter in Uganda and as such cannot peg the enjoyment of individual and legally protected electoral rights on privately owned communication infrastructure.
For the privately owned media platforms, there is no law in place to compel the media owners to provide a balanced and equitable platform to all candidates at all electoral levels who are in the tens of thousands. It is also very difficult, to guarantee programming control and most radio and other media do not have a national coverage.
The said proposed roadmap is also in violation of the electoral provisions that require an election to be by secret ballot and the nature of voting which cannot be amended by way of EC declarations and guidelines. We opine that the health and public safety cost of conducting an election in the current COVID circumstances is so huge and there is no guarantee that can be provided for the safety and protection of the citizens.
In the unfortunate and event that the Electoral Commission team is attacked with the pandemic, and the whole leadership has to be quarantined in the middle of the Electoral process, what will then happen to the Elections?
Last but not least, the Constitution of the Republic of Uganda under Articles 77, 103 and 109 provides a remedy for extension of the Elections that the EC should be in position to explore if the normal elections envisaged under the law cannot be conducted. Under the current circumstances where the EC does not have power to determine the trend and extent of COVID infections, it is collective suicide to attempt to proceed with an election.
Given the foregoing, we propose that a joint meeting of all stakeholders be convened by the Electoral Commission at the earliest to examine all the issues mentioned above and others pertaining to this very important process in the democratic path of our country. This will aid the credibility and legitimacy of any final outcome and position that will be arrived at with the input of all stakeholders and in compliance with the law.
An election conducted in the circumstances enumerated above, regarding the revised roadmap will definitely lack credibility and legitimacy. Unless our concerns are sufficiently addressed, we shall find it extremely difficult to participate in the 2021 General Elections.
Last week, the Electoral Commission chairman Justice Simon Mugenyi Byabakama said they were pushing ahead with the elections amidst the coronavirus pandemic scare in order to comply with the dictates of the constitution. Under article 61  of the constitution, the Electoral Commission is mandated to organize an election in the first 30 days of the last 122 days to the expiry of the term of office of the president, parliament or local government.
However, Byabakama said despite pushing ahead with the elections, it doesn’t mean that they are oblivious of the danger posed by the coronavirus. To reduce on the risk, he said they were banning all open-air campaigns in favour of digital campaigning where candidates use the media.
He called on the Electoral Commission to continue engaging all stakeholders in order to agree on a compromise position. He said elections in the past have caused a war in Uganda which resulted into the NRM taking over power in 1986, therefore they shouldn’t be played with.
However speaking yesterday to political party leaders under their umbrella organization National Consultative Forum, Byabakama said they have no powers to amend the law to extend the election or declare a state of emergency which would enable the extension of the election. “Extending an election is a work of another agency; if it tells us to stop, we will stop,” said Byabakama.