What is a free and fair election?

By Rosebell Kagumire

For Justice Benjamin Odoki, that is the central question for activists calling for elector al reforms

In 2011, two years from now, Ugandans are scheduled to vote in presidential, parliamentary, and local government elections. Many are resigned to another rigged electoral process. But a few who are pushing for reforms are facing a lot of resistance from the government.

Failure to organise credible elections has been blamed on the inefficiency of the Electoral Commission (EC), inadequate and contradicting electoral laws and lack of government commitment to deliver fair elections.

A recent report entitled: ‘Electoral Reforms in Uganda’ by the NGO, Foundation for Human Rights Initiative (FHRI), revealed that most Ugandans believe the current EC cannot deliver a free and fair election. They blame its composition and the way it is appointed.

‘(It would require) key legal changes in the administration of the elections as well as policy changes in the entire electoral process for Uganda to have quality elections that can be accepted as expressing the will of the people,’ says FHRI director Livingstone Ssewanyana, a human rights activist. He says the major reforms should begin now.

Many reformers want electoral laws that not only bring about justice but those that last long. The last three election cycles have each had a different set of electoral laws. Most have been passed at the last minute, giving both the EC and participants little time to prepare or even challenge them.

EC composition, appointment

The 2008 report on Electoral reforms in Uganda by FHRI indicated that the current EC commissioners were mostly politicians or close allies of President Museveni and his NRM party.

‘Vote rigging starts with the Electoral Commission, and now that we are under multiparty politics, all parties should have representatives on the electoral commission board,’ says Mr John Matovu, a lawyer who has been prosecuting election petitions.

But Maj. Rubaramira Ruranga, the head of the FDC electoral commission, differs.

‘I don’™t believe that parties should be the right institutions to help create the EC because each side would be pulling to their side to accomplish their interests.’

The public made a similar demand to the Ssempebwa Commission.

Wandera Ogalo, a lawyer who was a candidate in 1994 Constituent Assembly (CA) elections told The Independent there is need to review the constitutional provision that allows the president to appoint the EC chairman and commissioners.

Currently the EC chairman and commissioners are appointed by the president with approval of parliament. But the president has powers to remove them for reasons like incompetence, misbehavior or mental incapacitation. This paramount power of the president limits the security of tenure of the commissioners.

After the 2001 elections, a Constitutional Review Commission headed by Prof. Fredrick Sempebwa in countrywide public hearings found that the public wanted the EC strengthened by appointing a Judge as its head.

‘Incorporating judicial qualities emphasizes the capacity and independence to implement legislation which is fraught with potentials for dispute and also to be able to stand firmly in the face of challenges,’ the report released in 2002 reads in part.

Judges or persons qualified to be judges of a superior court head ECs in Botswana, South Africa, Zambia and Malawi.

To further harness the independence of the EC, legal experts want either the powers of the appointing authority to be checked or the appointment procedure changed or both.

This again was the wish of many Ugandans as the Ssempebwa Commission found.

”¦ The appointment of members of the EC by the president erodes its independence, parliament should appoint members of the commission and that political parties should have an input in the appointment of members,’ reads the report.

Ogalo suggests appointees to the EC chairmanship be nominated by the Judicial Service Commission and vetted by the Speaker’™s Committee in Parliament. The president should only preside over the formal appointment.

‘The appointing authority should not be the ruling party. Instead an independent body with a certain level of political maturity to identify those to constitute the EC should be put in place very soon,’ says Maj. Ruranga.

Maj. Ruranga argues since the commissioners’™ appointment can be cancelled by the president, this leads them to work at whims of the latter.

‘Most of the commissioners make compromises because they want to protect their jobs and nobody seems to be able to remove them except the appointing authority.’

Ogalo proposes that the commissioners be appointed through the Public Service Commission and vetted by parliament.

Changes in the law

There are concerns that laws that are inconsistent and inadequate must be addressed early enough to give the EC and participants in the elections time to prepare.

Among them is the Presidential Elections Act, 2005 provision on how elections can be nullified. The provision has raised concerns not only from the opposition but also from the bench.

In both 2001 and 2006 election petitions, the Supreme Court unanimously agreed that there was non-compliance with the provisions of the Constitution, the Presidential Elections Act and the Electoral Commission Act in the conduct of the presidential elections. The elections were marred by voter disenfranchisement, violence in some parts and bribery.

But the same court in 2001 ruled three to two and in 2006 four to three that intimidation, ballot stuffing, and ‘cheating in a significant number of polling stations’ were insufficient to affect the result of the elections ‘in a substantial manner.’

So despite the flaws, the majority ruled that the petitioner, Dr Kizza Besigye, had not proved the malpractice had affected the overall result and subsequently President Museveni’™s election was upheld. This seeming contradiction has led many to ask if the Supreme Court can at any one time nullify presidential elections.

Justice Joseph Mulenga, a judge who just retired from the Supreme Court weeks ago and took part in both rulings told The Independent the problem arises from the law and the judiciary cannot do much.

‘The debate is about what the law is and what it should be,’ said Justice Mulenga, ‘The formulation that we have today is whether the malpractice affected the result in a substantial manner as opposed to whether the irregularities were substantial enough to annul an election.’

Justice Mulenga said the law ‘affects mostly presidential candidates and not parliamentary elections because the difference between the winner and the petitioner is usually small in the latter thus making it easy for judges to find that indeed the irregularities benefited the victor.’

In fact Justice George Kanyeihamba in his dissenting judgment in 2006 said: ‘There can be no justification for the view that since these illegalities, irregularities and malpractices were few and far in between, they did not constitute enough evidence. Such justification would, in my view, be fallacious.’

Justice Kanyeihamba, one of the three judges who ruled to overturn the election, argued that the provision places a burden on judges to make mathematical calculations instead of looking at the credibility of the evidence presented.

While the constitution does not give grounds for annulling an election, these provisions are under the Presidential Elections Act.

In order to reform the current law on annulling an election, Ogalo said, the parliament must revisit the 1957 elections law.

‘The 1957 law gave judges both to be judges and mathematicians,’ said Ogalo, ‘But the current law is deliberate to deprive courts any provisions that could deliver not only free and fair election but justice.’

The 1957 National Assembly Elections Act, which gave the foundation for the current Presidential and parliamentary elections Act, had a clause that gave court powers to annul the election upon proof of substantial irregularities and this was not included under article 59 (6) (a) of the Presidential Elections Act 2005.

Commenting on the law Maj. Ruranga says: ‘A thief is a thief. It doesn’™t matter what you have stolen. The clause of substantial effect on the results was made deliberately to prevent any challenger of the presidential election to get justice.’

Ssewanyana wants clear-cut sanctions for election violations to be put in place irrespective of the numerical measure of its effect on the elections.

Chief Justice Benjamin Odoki told The Independent that it is important that parliament comes out soon to rectify the law.

‘When you say the elections are to be free and fair, what do you mean?’ the Chief Justice asks, ‘It’™s important to define how you arrive at a free and fair election.’

The requirement that any election petition be filed within 10 days after the election and that court delivers a judgment in 30 days also requires ammendment.

This law came under question in the Supreme Court rulings and it was agreed that there is no way in which a petitioner can gather evidence from the more than 70 districts of Uganda within that time. Besides the effects of acts like intimidation, violence, harassment and bribery cannot be substantially measured by any formulae.

‘We would want the period for the ruling to be at least 60 days to give parties and court time to prepare, hear and determine the outcome,’ Chief Justice, Benjamin Odoki said.

To effect these proposals requires amending Article 104 of the constitution and section 59 of Presidential Elections Act.

Campaigns

The law on campaigns needs to be revisited. Going by the court rulings, it is clear the incumbent president has undue advantage to campaign ahead of the official campaign period and use state resources during elections.

The legislation on use of public resources by candidates does not clearly state boundaries in terms of which state resources the incumbent should not access.

According to the Constitutional Review Report Ugandans had called for resignation of the incumbent early enough before the campaigns begin in case he’™s to run again in order to prevent this. Some said the Chief Justice should run the country during the presidential elections and that way fairness among the candidates would be ensured.

Reporting results

Many parties have called for the reforming of the tallying system and the reporting of results.

The 2006 election petition judgment showed that the EC was unable to provide court with reports from Returning Officers from the disputed areas months after the election.

Ogalo suggested issues with tallying irregularities could be avoided by removing the district in the line of reporting results saying most of the irregularities are introduced at district headquarters.

Maj. Ruranga also supports the proposal: ‘the EC improve its communication system to be able to get results directly from sub-counties.’

He also calls for more involvement of the media in reporting results.

‘Electoral officials in the past have altered results but when you have many journalists from all media, they cannot all be wrong.’

Maj. Ruranga said the Central Tally Center should be open to representatives of parties, civil society and religious leaders besides the EC to ensure transparency.

Parliament

Many of these proposals would be effected faster if the Legal and Parliamentary Affairs Committee of Parliament was keen on reforms. But critics say most members of this committee are indifferent because they are members of the ruling party, NRM, which gains a lot from the status quo.