A Discussion Paper
Prepared by
Ronald Kakungulu-Mayambala*
Lecturer, Human Rights & Peace Center, Makerere University School of Law
For
Uganda Christian University Law Society (UCULS)
March 11, 2011
*LL B (Hons) Mak; Dip. LP. (LDC); LL M (Lund); LL M (Fordham); SJD (Arizona).
I.0 INTRODUCTION
This paper deals with the critical issue of free and fair elections in the country. The issue is dealt with by focusing on the recently concluded 2011 General Elections, mainly the Presidential and Parliamentary Elections.
The paper therefore seeks to question whether the 2011 Presidential and Parliamentary elections were conducted in a free and fair environment. It is intended that this assessment place the concept of elections and democracy within the context of both the constitutional legal framework and the human rights norms pertaining to our country. More importantly though, is the advancing of pluralism and diversity generally but also ensuring that all key players, and stakeholders, i.e., the Government of Uganda (GoU), political parties and the general public understand the notion of free and fair elections.
2.0 BACKGROUND
Uganda had a return to multiparty rule after the constitutional amendments leading to the 2006 Presidential and Parliamentary Elections. The 2011 general elections were the second to be held under the multiparty system within the 1995 Constitution as amended. However, questions still remain as to whether the two general elections of 2006 and 2011 were free and fair. For purposes of this paper, am restricted to discuss only the 2011 general elections.
It is important to note that having free and fair elections is not a mere exercise but a process. Thus, in analyzing whether the 2011 general elections were free and fair, it is vital that we look at all the factors: prior to the elections, during the elections and after the elections. The three stages of [prior, during and after] set a fertile ground for a clear and unbiased understanding of the meaning of free and fair elections.
3.0 CONTEXT: UGANDAN STATE AND ELECTIONS
The current of management of public affairs in Uganda must be seen in a broader historical context but at the same time we note that the specific institution(s) mandated with handling the elections process in the country, do not only lack public confidence but are generally conceived to be biased. The lack of public trust in the institutions handing the election process further weakens these institutions as viable institutions.
As Barya notes:
One of the major problems in the change that took place from the so-called moevemnt system to a multiparty system since 2005 is that while a referendum was held on July 28, 2005 and the Political Parties and Organizations Act (No. 18/2005) was passed by Parliament in November 2005, all the other laws and institutions set up and groomed under the movement System logic were never changed and indeed have not been changed todate.
Apparently, whereas the country is supposedly under a multiparty dispensation, the institutions meant to help the country operate under the multiparty system are actually those of the old movement system both in outlook and composition. This does not only present a major political and social disdain but also have great ramifications upon the conduct of free and fair elections in the country. Most of the office bearers of these institutions remain as political appointees mainly coming into office through the well-entrenched system of political patronage and are mainly cadres of the current establishment in the country. In one-way or another, they are bound to feel the strong urge to “reward” the appointing authority, not only as a way of saying “thank you” but also to further their own stay in office since they remain eligible for a second and last term in office.
In terms of certain institutions of the State and especially those that are key to the election process such as the Uganda Police Force and the Judiciary, issues remain as to their independence [see questionable vote recount in Rubaga North Constituency] and the police role in the recently failed Kampala Mayoral Elections. However, some credit still goes to the judiciary and as Barya notes, “to a large extent, the judiciary today remains one of the few institutions of state that is relatively still independent.”
4.0 THE ELECTORAL COMMISSION
The mandate of organizing elections in Uganda is with the Electoral Commission (EC).4 All Ugandans who seek to exercise their right to vote must first register with the EC.5 The Constitution gives Parliament power to enact laws on elections.6 Indeed Parliament has enacted laws to this effect including The Electoral Commission Act7 as amended,8 The Presidential Elections Act,9 as amended,10 The Parliamentary Elections (Interim Provisions) Act,11 and The Political Parties and Organizations Act,12 as amended.13 All the above legislations (with just slight amendments) and if applied properly are capable of giving Uganda free and fair elections. However, strong challenges (some of which are actually deliberate) still remain which render elections not free and fair or at least not to be seen as such.
2 J.J. Barya, Politico-Cultural Pluralism, Diversity and Public Order Management in Uganda Today, Paper presented at the National Convention on Peace, Democracy and Good Governance, January 13 – 14, 2011 at Makerere University Main Hall, p.2.
3 Barya, supra, at 3.
4 See Articles 60-68 of the Constitution of Uganda, Cap.1.
5 See Article 59 of the Constitution.
6 Article 76 of the Constitution.
7 Cap.140 Laws of Uganda (LoU).
8 See the Electoral Commission (Amendment) Act 2010.
9 Cap.142 (LoU).
10 Act No.14 of 2010.
11 Cap.141.
12 Act No. 18 of 2005.
13 See The Political Parties and Organizations (Amendment)(No.2) Act, 2010.
4
4.1 MANDATE OF THE EC VERSUS THE SITUATION ON THE GROUND
The wide and vast mandate of the EC sometimes goes unnoticed. Despite its wide and well-grounded mandate, the EC has either deliberately or out of sheer incompetence failed to exercise its mandate to deliver free and fair elections in Uganda‟s 2011 general elections. Cases of missing names on the register and late arrival of voting materials attest to this fact. This incompetence has intensified voter apathy. Indeed of the 13,954,129 registered as voters for the 2011 general elections, only a paltry 8,272,760 voted (59.28%), whereas a total of 5.6 million (44 per cent) of the registered voters did not vote. The EC needs to investigate the cause of such a low voter turn up.
4.2 COMPOSITION OF THE EC
H.E. President appoints the EC with approval of Parliament.14 It is a known-fact that the ruling NRM has a solid and unshaken majority in Parliament and will maintain the same numbers or even above in the soon to be sworn in 9th Parliament of Uganda. This calls into question the issue whether the current composition of the EC (which is as a result of „how the President deems fit‟ with approval of the NRM dominated Parliament) should be allowed to continue. Similarly, questions still remain as to whether key players such as political parties should not have representation at the EC at the level of Commissioners.15 Calls by the Inter-(Political) Party Cooperation (IPC) for reform on both the country‟s electoral laws and composition of the EC were flatly rejected by the GoU and the EC itself. The result of all this acrimony were a few country-wide demonstrations by the IPC women and leaders against the EC and calls by President Museveni‟s main challenger – Dr. Kizza Besigye threats of announcing his own results with threats from the President to arrest the latter if he dared announce his own results.16 The EC later intervened and announced that Dr. Besigye was free to announce his own results. However, all the above point to a big malaise with regard to the EC.17
In a multiparty dispensation, the political opposition must be represented at the EC. This does not only increase transparency at the EC but is also the practice worldwide in relation to multiparty politics.
5.0 VOTER BRIBERY
One of the key factors that can be said to have had a negative effect on the 2011 general elections is voter bribery. This vice is mainly done through the endless Presidential donations (courtesy of the very big Office of the President and State House Budgets), creation of new Districts (however unviable but for mainly political expediency), „facilitation‟ of government projects such as the NAADS and Baana baggagawale (which
14 Article 60(1) of the Constitution.
15 The EC consists of a Chairperson, a deputy Chairperson and five other members (Commissioners).
16 M. Nalugo & P. Croome, Besigye gives self 47% of votes cast, DAILY MONITOR, March 2, 2011 at 1.
17 G. Bareebe & P. Croome, Opposition call for city protests today, DAILY MONITOR, March 9, 2011 at 1.
5
have actually been high jacked as NRM party programs the fact that they are run using public funds notwithstanding) (remember the 20 millions given to every MP immediately after passing the questionable supplementary budget allegedly to „supervise‟ NAADS the program) and out right bribery of both the vote and political opponents.
5.2 OTHER FACTORS
The above factors coupled with a “supportive and standby” army make matters worse. Free and fair elections remain a mere dream. With commercialization of politics through the national treasury, comes the massive deployment of the army as soon prior to, during and after the elections.18 The use of both state resources and facilities mainly by the incumbent during the campaigns also creates a non-leveling ground among the candidates.19 Both the private and electronic media also discriminate against the candidates in utter disregard of the law. This makes it difficult for mainly the opposition candidates to make their message and manifestos reach the wanainchi.
6.0 CONCLUSION
In order for Uganda to have free and fair elections, major reforms need to be carried out mainly relating to the composition of the EC, the army should not get involved in election or post election security, and all cases of voter bribery including the creation of new districts should be stopped. A new law can for example be made to state that no new districts shall be created says two years to the general elections.
For God and My Country.
18 Indeed the massive deployment of the army on the streets is one of the factors that scared away voters from turning up to vote alongside the missing names, which not only disenfranchised but also disorganized some voters. See Y. Mugerwa, Why 5 million Ugandans stayed away from polls, SUNDAY MONITOR, March 6, 2011 at 2.
19 One Presidential Candidate went „missing‟ due to lack of logistics to traverse the many districts.
No comments:
Post a Comment