By Independent Team
Justice Kanyeihamba opposes political party representatives for EC
This March might turn out to be the most important month in the run up to the February 2011 presidential and parliamentary elections.
Whether the 2011 outcome will be good or bad depends on the outcome of four Bills that must be disposed of by parliament this month namely; the Political Parties and Organisations (Amendment) Bill 2009, the Electoral Commission (Amendment) Bill 2009, the Parliamentary Elections (Amendment) Bill 2009 and the Presidential Elections (Amendment) Bill 2009.
The man at the centre of this crucial legislation is Badru Kigundu and the Uganda Electoral Commission which he chairs.
Deliberations of these crucial Bills is ongoing in the committees of Parliament. However, already the omens do not look good.
On Tuesday, December 22, 2009 a very interesting law was passed by Parliament. It has since been dubbed the ‘7-minutes motion’ because of the speed at which it was passed. The law is part of the Political Parties and Organisations (Amendment) Bill, 2009. The object of this Bill is to provide for the use of government or public resources for political party or organisation activities.
Apparently, a section of the Bill was rushed through Parliament by NRM MPs in a well orchestrated move that caught the opposition totally unaware. The passed Bill will see the central government give funding to all political parties basing on the strength of their representation in parliament. The opposition, which had lobbied for the law, wanted the funding to be based on the total voter strength of the party in a national election. In this case, the majority NRM would get 59 percent and FDC 37 percent of the total funding available. Other parties like UPC would get 0.86 percent of the money available. Under the parliamentary strength arrangement which was passed, NRM gets 63 percent of all money, FDC 11 percent, UPC 2.7 percent and DP 2.4 percent.
Opposition MPs claim the law was forced onto parliament and passed hastily without proper scrutiny and procedure.
It is such machinations that many 2011elections observers fear could lead to unwanted outcomes. They point at Kenya.
In 1997, the Kenyan Parliament passed the law for review of the Kenya Constitution to provide a framework for constitutional change following demands for ‘minimum’ political and legal reforms by the Inter- Party Political Parties Group (IPPG). According to some analysts, changes that allowed opposition political parties to participate in making certain appointments, helped avoid violence. For example, sections of the Constitution of Kenya were amended to allow political parties, rather than the president, to nominate MPs and councillors and the Electoral Commission of Kenya (ECK) Commissioners were increased from 4 to 21.
First forward to 2007; before the disastrous election that year, Kenya had three peaceful multiparty elections. During preparations for the 2007 election there were warnings regarding the partisan appointment of five Electoral Commission of Kenya commissioners in total disregard of dissent from and disregard of the IPPG which drew up constitutional revisions.
|Can these EC commissioners be impartial?
Dr Badru M. Kiggundu (NRM)
He has been the Chairman of the Electoral Commission since November 18, 2002. He is in charge of the Northern Region districts. According to Conservative Party (CP) leader and former Rubaga South MP John Ken Lukyamuzi, Kiggundu contested for Member of Parliament for Rubaga South in 1996 on an NRM ticket and lost. According to other reports, Kiggundu was also an LC official while he was Dean Faculty of Technology at Makerere University.
Joseph .N. Biribonwa (DP)
He is the deputy chairperson of the Electoral Commission and former Speaker of the Bunyoro Kingdom. He is in charge of Near East Region. Prior to this, Biribonwa was a commissioner at the EC from 2002 to November 2009. According to a former NRM politician, Biribonwa was actively involved in trying to convince those that had fallen out with the NRM, between 2004-2006 when he was still a commissioner of the EC, to get back to the NRM. He is said to have organized and financed several meetings in Entebbe during this time. He is also highly respected and influential within the party circles in Entebbe
Tom. W. Buruku (NRM)
He is the commissioner in Charge of the Central North Region. In1980 Buruku was a Democratic Party parliamentary candidate who was barred from presenting his nomination papers and was detained at a road block. He later fled into exile in Switzerland.
Sam Rwakoojo (NRM)
He is the EC’s secretary. Information on the EC website shows clearly that Rwakojo is former MP for Rwemiyaga in Sembabule on an NRM ticket between 1996 ‘“ 2001 when he lost to the current MP Theodore Sekikubo.
Stephen .D. Ongaria (NRM)
He is the Commissioner in Charge of the Mid Western Region. Formerly from the Uganda Peoples Congress party (UPC), Ongaria crossed to the NRM in 1996 and represented Tororo Municipality. According to the Electoral Commission website, Ongaria represented Uganda at the EU/ACP Parliament, in Brussels for several years. He was also one of the three MPs from the Parliament of Uganda who, together with 3 counterparts from Kenya and 3 from Tanzania, signed the East African Community Protocol establishing the Community in Dar-es-Salaam in 1998. He also served on various sessional and select committees. He was a delegate to the Constituent Assembly (CA) that debated and promulgated the 1995 Constitution of the Republic of Uganda.
Dr. Tomasi Sisye Kiryapawo (NRM)
He is the commissioner in charge of the Far Eastern Region. Prior to this, Kiryapawo was the Member of Parliament representing Budaka Constituency in Pallisa District on an NRM ticket. He also held several ministerial positions including Minister in charge of Micro-credit (Entandikwa) 1996-1998; Minister of State for Gender, Labour and Social Development in charge of Gender and Cultural Affairs (1999-2000) and Minister of State for Energy and Mineral Development in charge of Mineral Development (2001). After losing his MP seat in 2001, Kiryapawo was appointed Uganda High Commissioner (Ambassador) to the United Kingdom and later Uganda’s Ambassador Extra-ordinary and Plenipotentiary to the Republic of Ireland.
Mugabi Justine Ahabwe (NRM)
She is the commissioner in charge of the Central South Region. She is a Girl Guide and was once a Girl Guide District Commissioner for Rukungiri District. Prior to her appointment to the EC, Ahabwe was a re known NRM mobiliser in Mbabara, western Uganda.
Dr. Jenny B. Okello (Unknown)
She is the commissioner in charge of the South Western region.
Some analysts blame such impunity and total disregard of the views of other political players as the main cause of the 2007 post-election violence in Kenya. In fact some, like the Kriegler Report, have recommended punishing members of the ECK. Some analysts have likened President Museveni’s renewal of the tenure of the Uganda’s Electoral Commission (EC) headed by Badru Kigundu to the same level of impunity. Initially it had been hoped that Museveni, who is the appointing authority under the Uganda Constitution, would make some concessions by reconstituting the EC.
The Kenya precedent means that if the EC mishandles the elections, as happened in previous elections and violence erupts, they could be held individually liable.
When Kiggundu visited The Independent on a familiarization tour last year, he was asked why he does not resign if, as is obviously the case, a significant number of stakeholders have said they think he does not have either the will or the ability to deliver an acceptable election. Kiggundu said that determining whether elections are free and fair is not the responsibility of one man and that nothing would change even if he resigned.
Of course, we must also appreciate the fact it would be a direct rebuff to his appointing authority, Museveni, if Kiggundu resigned. So he might be hanging in there for fear of reprisal.
In a more recent interview he has told The Independent that the EC team, ‘are professional and are mindful of the democratic rights of Ugandans.’
But Prof. George Wilson Kanyeihamba, retired justice of the Supreme Court, says elections are like football. If the referee is partisan, the results of the match cannot be fair.
The only way to have democracy and fair results is by having an impartial Electoral Commission. He said given that the public has lost faith in EC it’s better to have it reconstituted. Kiggundu is an undisputed member of the ruling NRM party, so his impartiality is doubted.
Why electoral reforms?
Justice Kanyeihamba is one of three Supreme Court Judges who ruled in favour of the nullification of President Museveni’s 2006 re-election following a petition filed by opposition FDC President Kizza Besigye.
In 2001 and 2006 the Supreme Court unanimously ruled that the EC failed to conduct free and fair elections. In both election petitions all the 5 judges in 2001 and seven judges in 2006 ruled that: 1. There was non-compliance with the provisions of the Constitution, Presidential Elections Act (PEA), and the Electoral Commission Act, in the conduct of the presidential elections. 2. There was non-compliance with the principles laid down in the constitution, the PEA and the Electoral Commission Act; and that specifically, the principle of free and fair elections was compromised.
The court also expressed grave concerns regarding the involvement of the security forces in elections, intimidation, violence and partisan harassment; massive disenfranchisement of voters; partisan conduct of electoral officials and lack of voter education.
They only disagreed on whether, therefore, the presidential election should be nullified. Despite the unanimous decision that the elections were a fraud, the judges finally upheld the election on a 3-2 and 4-3 majority ruling in both 2001 and 2006.
It’s on basis of this alleged incompetence that the opposition wants electoral reforms and change of the EC composition.
Prof. Kanyeihamba, however, cautions that the pursuit of mere reforms of the electoral law or overhaul of the EC membership will not give Uganda democratic elections.
The judge says the inadequacies in the law are not the main obstacle to free and democratic elections in Uganda.
‘I don’t entirely agree with IPC [Inter Party Cooperation] that what we need is an overhaul of the electoral law. In all the election petitions of 2001 and 2006, the courts did not find that the law needed reform or amending but implementation and enforcement. They only said the electoral law had not been complied with. I agree that there should be some amendments in the electoral laws, but these are secondary. What is most crucially important is the way the Electoral Commission evolves and its composition,’ Justice Kanyeihamba observed.
He says appointing members of political parties to EC would defeat the intended purpose and replicate a non-partisan electoral body. The only difference would be that this time round the members are drawn from different parties.
But Prof. Oloka Onyango, former Dean of Faculty of Law at Makerere University says, ‘we cannot have free and fair elections with that commission which three times has overseen electoral disaster. If this current status is not changed, it may spell disaster for Uganda’s politics’.
He also says the electoral reforms are a necessary step towards democratic elections, but they alone are not enough. ‘I believe the opposition is taking the right direction for Uganda to demand electoral reforms. Passing these reform proposals by parliament would be the first positive step in achieving free and fair elections. However much more needs to be done. Voter education is lacking, the Electoral Commission composition is partisan to the ruling party and the incumbent,’ he says.
These remarks reinforce the perception that the current EC is partisan and therefore, no matter what it does the public will still think the elections were not free and fair.
Prof. Edward Kakonge, who chairs the Uganda Debt Network, an NGO, agrees that reforming the EC is a fundamental. However he says the change should not just be done at the top. It should be comprehensive to cover all electoral officials down to the local level.
‘I do not believe that the composition of the EC will change. If it does, that will not necessarily translate into free and fair elections. There are many fundamental problems that need to be addressed. These commissioners sit at the headquarters in Kampala and are fed with figures from polling stations which they use to process the results. They are not on the ground where the rigging takes place,’ Prof. Kakonge said.
‘From my personal research, I found out that the army has always created fictitious army detaches which in the end become voting centres. Here they create fake voters and stuff ballot boxes. The powers that be have agents at the local level who ‘manufacture’ votes. Also, there is no accountability of the ballot papers. The EC does not carefully follow the numbers of ‘manufactured’ ballot papers, distributed, used and those spoilt during voting. The issue of vote recounting is very important. If the 2006 votes were recounted, there would have been a huge difference in the results. Changing the EC commissioners is just the start.
Kakonge says that political parties must be represented on EC or have a say in its composition. ‘To have parliament institute laws that would force reforms on the commission will be useless if we continue to have a Movement kind of EC. The opposition has a right to demand reforms. If they allow President Museveni to remove Kiggundu and appoint another chairperson without them having a say, they would have achieved nothing. Since Uganda is in a multi-party dispensation, the opposition have every right to demand change where they fill they are disadvantaged. The consequence of ignoring these proposals will be very unfortunate.’
Will NRM accept reforms
Most observers are keeping their eyes peeled during this period because it is common knowledge that the NRM usually keeps everyone guessing until the last minute and then they push through very controversial Bills, the so-called ‘omnibus Bills’.
A famous one is the Constitutional (Amendment) Act 2005 which amended 50 sections of the 288 articles of the Constitution of Uganda 1995.
Among issues it grouped together were amending the Constitution in accordance with article 261 of the Constitution: to distinguish Kampala as the capital city of Uganda and to provide for its administration and for the delineation of its boundaries; to provide for Swahili as the second official language of Uganda; to provide for the leader of the opposition in Parliament under the multiparty political system; to remove the limits on the tenure of office of the President; to create the offices of Prime Minister and Deputy Attorney General; to provide for the
independence of the Auditor General and to provide for the procedure for his or her removal; to provide for the creation and functions of special courts to handle offences relating to corruption; to establish and prescribe the functions of a Leadership Code Tribunal; to provide for the control of minerals and petroleum; to provide for the holding of referenda generally; to make miscellaneous repeals to the spent provisions of the Constitution and to provide transitional provisions having regard to the amendments made in the Constitution; and for related matters.
The heart of this amendment was one; ‘to remove the term limits on the tenure of office of the President’. That became law on Sept. 30, 2005 exactly four months to the presidential elections of February 2006. On June 29, 2000 the controversial referendum on political systems was passed just a few months to the March 12, 2001 presidential election. Museveni won with 69.3% of the vote.
On July 28, 2005 another referendum on the introduction of the multiparty System was held just months to Feb. 23, 2006 elections. Museveni won with 59.2% of the vote.
Going by that time, March is still early in the game because the government likes to delay reforms as much as possible. The late timing is designed to put the opposition in a desperate position and force it to accept token reforms in a take-it-or-leave-it form.
Already the 2011 road map is derailed. Updating the National Voter Register is still ongoing countrywide but it is still not clear which company won the tender to do the job. Last year, 14 companies applied, 10 of which met the requirements. A row erupted amidst allegations of corruption and influence peddling among several EC and NRM bigwigs to influence the US$15 million tender. It was alleged that the NRM’s Secretary General Amama Mbabazi was fronting two companies; Balton (UK) and Technobrain (TZ) Ltd to the EC while two other firms; Waymark (SA) & AH Consulting (UG) Ltd were linked to a member of his family.
Mbabazi categorically denied the allegations saying he could not be part of something that would spell a ‘˜conflict of interest’. Although these allegations could not be verified, it was established that the bidding process had had irregularities at the EC.
Will Museveni yield to pressure?
|Justice Kanyeihamba’s views
‘Two terms for the EC don’t matter. They don’t ensure free and fair elections. The electoral commissioners can be partisan even in the first five years. If you are partisan, you don’t cease to be so after appointment to the Electoral Commission.
‘More than one body should nominate the names of candidates from whom the Electoral Commissioners are appointed. The Electoral Commission should not be composed of members of one political party and those who support one party. The government, the opposition, the Law Society, civil society organisations should submit two nominees each. There should be a powerful vetting committee comprising people of high integrity such as the Chief Justice as the chairman, Speaker of Parliament, leader of opposition, President of the Law Society, head of Public Service Commission and representatives of civil society organisations as members. All the Electoral Commissioners should be vetted by this committee. Then the Electoral Commission chairman is appointed from the vetted list. Then either the President or the members can elect the chairman from among themselves.
The composition of the Electoral Commission should be reviewed by the vetting committee before the next elections to see whether they are still competent depending on their performance in the previous elections.
‘In the Movement we claim to have brought peace in the country and this is largely true. Then why do we need the security forces in voting areas? The police and civil society organisations can do the job.’
In one of the most telling moments of the NRM strategy this time, the NRM Secretary General Amama Mbabazi on Feb. 4 signed a memorandum of understanding with representatives of the opposition for the Inter-party Political Dialogue (IPoD). The signing of the IPoD MoU was supposed to be on December 4, 2009 but it aborted when Mbabazi refused to participate. Mbabazi’s showing up surprised many.
Initially, there were claims that Mbabazi signed the MoU because of pressure on the NRM by the donors.
The FDC’s Spokesperson Wafula Oguttu appeared to imply as much when he told The Independent: ‘They did not sign voluntarily. Without mounting pressure and continuous demands from the IPC we would not have achieved the signing. They [NRM] just want to show goodwill which we know is not the case.’
However, investigations by The Independent among members of the European Union, USA, and the Netherlands Institute for Multiparty Democracy (NIMD) which was a key facilitator to the signing show absolutely no pressure.
This, however, raises several questions among them whether Mbabazi was acting alone, on behalf of the party, or with the clear support of President Museveni.
This question arises because of the manner in which Museveni conveniently distanced himself from the actions of then minister of internal affairs Ruhakana Rugunda who represented Uganda at the Juba Peace Talks with Lord’s Resistance Rebel leader Joseph Kony.
The opposition regards overtures such as the MoU signing by Mbabazi with skepticism.
‘We will continue to push for reforms,’ DP spokesperson Erias Lukwago says. ‘We know that President Museveni wants to do what Idi Amin wanted to do; be president for life. We will not let this happen. He will do anything to stay in power.’
FDC Spokesman Wafula Oguttu agrees with Lukwago. ‘We must save this country. We know that he (Museveni) will do anything to stay in power but we must continue to exert pressure for reforms.’
IPC reform proposals
Limit tenure of electoral commissioners to two terms of five years each.
Amend Article 60 (I) of the Constitution to allow the Judicial Service Commission nominate the EC Commissioners from a list of people submitted by all registered political parties for approval by Parliament.
The Chief Administrative Officers at district and other public servants should be removed from electoral matters.
Section 38 of the EC Act be amended to end discretionary powers.
EC Secretary to hold job on contract.
Increase EC commissioners from 7 to 11.
If need arises for reinforcing order at a polling station, the presiding officer should take the responsibility of requesting for police assistance.
Soldiers and other security agents should vote in nearby civilian polling stations and not in their barracks.
They must be on the voters’ register of that particular polling station. No soldier or security operative should be allowed to vote at any other polling station on excuse of being deployed nearby.
Amend article 78 (1) (c) of the Constitution be amended to remove army representatives from Parliament.
Allow voters in the Diaspora to vote.
EC to demarcate constituencies based on population size
Government to submit list of hostile states to Parliament for approval at least 6 months before every presidential and parliamentary election.
Make parliamentary constituencies not districts the main electoral centres, where all results are tallied.
Amend the Presidential Elections Act and Article 104 (2) of the Constitution to provide for a more scientific way for court to annul a presidential election, rather than the ‘affecting the result in a substantial manner.’
Enact law to punish electoral offenders with fines or imprisonment or be disqualified from standing for elective office for five years from the date of conviction.
Deny candidate, agent, or EC official who has committed an illegal practice employment in the Public Service, Parliament or in a council
Amend the Political Parties and Organisations Act 2005 to require political parties to notify the EC about change of the physical location of their offices.
Amend the constitution to require EC to declare a candidate elected unopposed when one of the only two candidates withdraws or is disqualified for the election.
Require a returning officer to compile and submit a detailed report to the EC within seven days after parliamentary election.
EC declares the results of a parliamentary election within 48 hours from the close of polling.
Amend Electoral Commission Act 2005 amended to provide for the tenure of the Secretary of the Commission.