By Haggai Matsiko
The implications for 2016 elections
The Sept.29 ruling by the Constitutional Court that put an injunction on election of special interest groups’ legislators has created excitement amongst sections of political pundits – just months to the 2016 polls. It is being viewed as a pointer that the courts, which some say tend to favour positions that the ruling party does not find injurious, are occasionally capable of serving up some biting rulings.
With just a few months to the 2016 elections, which some already fear are likely to be replete with irregularities and likely to lead to court battles, such optimism is critical for many. On at least one occasion, President Yoweri Museveni has retained power basing on a court ruling.
In the 2001 and 2006 elections, then-president of the opposition, Forum for Democratic Change (FDC) party, Kizza Besigye petitioned the Supreme Court over election malpractices and on both occasions, the court ruled that there had been gross irregularities, but that they cautiously added that the irregularities were not substantial enough to have altered the outcome of the elections. If they had ruled only on the “gross irregularities”, the elections might have had to be repeated – with possibly unexpected results.
In the recent past, the courts have prevented the NRM government from kicking errant MPs out of parliament and ruled in favour of Elias Lukwago, who was forcefully ejected from his office as Lord Mayor following irreconcilable differences with the Kampala Capital City Authority Executive Director (ED) Jennifer Musisi.
Indeed, while the Sept.29 decision is not a major break from the past, the ruling seems to have caught off-guard some 20 affected legislators and punctured mainly the ruling party because it came at a time it was least expected.
It came just after President Museveni had accented to the Presidential Elections Amendment Bill 2015 and the Parliamentary Elections Amendment Bill 2015, and at a time when parliament appears not to have more time to add other amendments to the law.
The Constitutional Court ruled unconstitutional the laws that govern the election of members of parliament of special interest groups that include the army, the youths and workers.
“We do grant an injunction against the respondents restraining them from conducting elections for the special interest groups of the army, youth and workers under the law that we have found to be unconstitutional,” the constitutional court ruled.
The ruling had another twist because it did not affect the targeted representatives of Persons with Disabilities (PWDs) and instead hit other interest groups.
The petition was launched in 2010 against the Attorney General, the Electoral Commission and the National Union of Disabled Persons of Uganda (NUDIPU). The petitioners comprised Kasozi Robinson, the Legal Actions for Persons with Disability, Moses Mauku and Catherine Aneno. They cited several concerns and begged court to block the 2011 elections. However, with the 2011 elections out of the way, the respondents asked court to dismiss the petitions, noting amongst others that they had been overtaken by events. Meanwhile, the courts dithered. And when they finally ruled, five years later, the PWDs were untouched.
Justices– Remmy Kasule, Ruby Opio Aweri, Richard Buteera and Fredrick Egonda-Ntende, who made the ruling noted that the election of the other special interest group, Persons With Disability (PWDs), can go ahead as “the law in relation to the same passes constitutional muster”.
The court noted that the delay to hear and dispose of these matters in time as required by the Constitution “is a regrettable lapse which is simply not acceptable” and put a freeze on elections of affected groups.
The ruling, in effect blocks the re-election of the 10 army representatives, five workers representatives and five youth representatives until an amendment of the law governing their re-election is put in place.
Most critical amongst the concerns of the petitioners was the fact that while the constitution requires parliament to enact laws governing elections of these representatives, instead parliament made laws delegating its authority to the respective ministers.
In respect of the army, the minister made regulations delegating the delegated authority to prescribe the procedure to the Army Council, which has never made known the procedure by which army representatives are elected.
In respect of representatives of workers, the minister did not prescribe the procedure but instead invoked the constitution of the Federation of Trade Union Organisations.
The petitioners also noted that although the constitution provides for workers representatives, the majority of workers have no voice in determining who will represent them as the representatives are voted through the workers’ union structures.
It is on the basis of these concerns that the petitioners asked court to rule that parliament enacts a law as required by the Constitution and that a permanent injunction is issued against holding elections in respect of these groups under the current laws.
The other issue is that under the present electoral process only workers affiliated to the workers unions NOTU (National Organisation of Trade Unions) and COFTU (Central Organization of Free Trade Unions) can participate in election of representatives of workers and non-unionised workers cannot participate in this process.
While the ruling targets the law governing the election of and not the presence of representatives of special interest groups, it has re-awakened a view that special interest groups should not be in parliament at all.
Former Uganda People’s Congress (UPC) Vice President, Joseph Bossa, for instance, questioned the criteria used to select special interest groups to be represented in parliament.
“You have a workers’ representative,” he said, “why not a farmers’ representative, one would imagine that there are more farmers. This is a dicey issue that raises a lot of questions.”
For some observers, the presence of soldiers in parliament is seen as part of President Museveni’s unenviable trend of militarising politics.
However, others see the presence of the army as an acceptable strategy for stable government.
For instance, in a paper titled `Institution-building: the case of the NRM and the military in Uganda’, the late renowned constitutional law researcher, Dan M Mudoola, showed that the Uganda military is domesticated effectively by accepting it as an interest group rather than denying it an extra-military role.
Uganda People’s Defence Forces (UPDF) spokesperson, Paddy Ankunda, feels that it is a no-brainer why the over 50,000-strong army, which boasts of having played a historical role in Uganda’s politics has representation in parliament.
“The problem is that you have people who are lost in the mystery of western democracy,” Ankunda said, “Otherwise, what is wrong with a peoples’ army, given its historical role, having representation in the people’s parliament?”
Ankunda particularly wondered how apart from its historical role, an army of over 50,000 soldiers should not have representation in parliament when constituencies of 15,000 people are represented.
Sam Lyomoki, one of the affected five workers MPs, told The Independent that the biggest challenge from the ruling is that it has come late. “If it had come early,” he told The Independent, “we would have put the amendment in the recently passed amendments”.
For now, parliament does not have time to bypass the court ruling as has happened in the past. It needs to debate and pass the amendment before the elections leaving appealing as the only solution.
Despite excitement around the ruling, Makerere University law lecturer and constitutional law expert, Busingye Kabumba, says conclusions being made are immature.
“Historically, the Constitutional Court and the Supreme Court have been progressive when it comes to decisions where executive power has not been seriously challenged,” he told The Independent, “but in decisions where that power has been challenged seriously, the courts have been deferential to the incumbency and this is a worldwide phenomenon that we have seen in Ghana, Nigeria, Canada and other countries.”
Kabumba, also says that while observers might question the presence of these interest groups in parliament, he believes it is extremely important to have these groups represented in parliament especially the army.
“The army representation in parliament bridges the gap between our history of militarism and the transition to effective democracy,” Kabumba told The Independent.
However, others say that a lot of progress has been made and every qualifying Ugandan can contest and win elections and that therefore, special interest group representation is no longer relevant.
For Lyomoki, those who want him and his colleagues out of parliament are enemies of Ugandans.
“I think saying that are enemies of workers, youths, PWDs and the army,” Lyomoki told The Independent, “that type of thinking is not shared by the majority of Ugandans.”
Amongst the affected group, the army is the most sensitive.
Many say for as long as President Museveni is in power and for as long as the UPDF is central to that power as it is, blocking army representatives from parliament for even a short while is but impossible.
But precisely because it is a tough call, the fact that the Constitutional Court, which is constituted by judges that understand those dynamics better, made that ruling, has got constitutional experts and enthusiasts of the independency of the judiciary celebrating.
In their view, the ruling shows that the judiciary is ready to take on anything irrespective of its implications on President Museveni’s government.
This ruling is one in many where the judiciary has showed that it can still bite at the beast that the all-powerful President Museveni government is perceived to be, some observers have concluded.
Kabumba said that while the Attorney General has the right to appeal, he is better served by taking steps to amend the anomaly exposed by the ruling.
But the option of appealing seems the most favourable and workable for the government. Chief Whip Ruth Nankabirwa told journalists on Oct.2 that government would concentrate on exhausting the available options putting emphasis on appealing.
Attorney General, Fred Ruhindi, said that government had put in a notice of appeal and a stay of execution. Lyomoki said the earlier Ruhindi and team secure the stay of execution, the better. Once granted, the stay of execution, will allow the Electoral Commission (EC) to go ahead and organise elections for the special interest groups in 2016.
Already, the Attorney General’s efforts are buoyed by the fact that the Constitutional Court ruling does not enjoy support from even the usual quarters – the opposition.
Youth MP Gerald Karuhanga, an ardent critic of Museveni’s government, described the ruling as “crazy” and said he hoped the Attorney General’s appeal comes as soon as possible.
The other affected MPs and a number that was planning to compete for these seats are already spitting fire accusing court of delaying the ruling up to a point where they had already participated in the fresh process for 2016 elections.
The court’s ruling also comes at an unfavourable time. With both Museveni and the opposition against him looking to grab all the support they can get, they are vulnerable to lobbying from these special interest groups.
78 percent of Uganda’s population are youths. Youth MPs have not proved in the past that they hold a lot of sway with the youths on the grassroots. But if they can rally them, both Museveni and the opposition are likely to put up a fight for these interest groups.
Apart from this, the Supreme Court also has a record of usually taking its time before ruling on such controversial issues. Any delays will buy these special groups more time.
And once the 2016 elections are out of the way, MPs will have enough time to amend the law.