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It’s not the law but the bad state messing up Uganda’s elections

By Justice George Kanyeihamba

Events have militated against my earlier intention to prepare and circulate a written paper on the subject chosen for my discussion to-day [November 19). Last Wednesday (November 11), I retired from the Supreme Court where I had served as a Justice for more than 13 years. Presently, I am looking for an office where I will operate from in retirement. Now I beg to refer to extracts from my previous articles. In the concept note ACFODE writes, “Reports from the observer groups highlighted the challenges and made recommendations to review electoral laws to suit a multiparty system. Against the background that government had failed to amend the electoral laws, the opposition parties (FDC, UPC, JEMMA and CP (why not DP?) formed an inter-party co operation to present a shared voice on many issues in preparation for 2011 elections. One of the outcomes of the inter-party cooperation has been the presentation of proposed electoral reforms to the Speaker of Parliament.” It is not only the inter-party group that has felt that there is need for electoral reforms in Uganda. Others have done so. NGOs, international observers and political activists have echoed and re echoed the same cry that the Uganda electoral laws need reform.

While I agree that certain aspects of the electoral practices and behaviours need radical surgeries, I fundamentally disagree with most people who think that our electoral law needs overhaul or reform. An analysis of our basic law, the Constitution of Uganda and all the electoral laws that are subordinate to it appear to me and any other observer who cares to read and internalise them to be more than adequate to sustain an impartial, transparent, fair and democratic electoral process that would produce and ensure election results reflecting the will of the people.

I am fortified in this belief by all the judicial inquiries and pronouncements that have been held and published from election to election since elections became one of the ways and the most desirable for change of government. In every judgment, in every opinion on petitions, the unanimous decisions of the courts and the impartial reports of observers give the coordinated chorus of violations, infringement, non-enforcement of and blatant failures to implement and enforce the laws. The Constitution and the electoral laws of Uganda provide for an impartial, transparent and fair electoral process. Yet, the implementers and enforcers of the Constitution and the laws and their rules and procedures have persistently failed to live up to the expectations and observance of the law.

Partisanship of those who organise, oversee and supervise elections has distorted both the letter and spirit of the law. Personalised governance and bribery and the desire to retain personal office, fortunes and favour at the expense of national interest have been the prime movers of electoral malpractices, intimidation, bribery and robbery of votes. Today’s seminars, workshops and themes of fora like this one should not be about electoral reform but on how to honour, implement and enforce our Constitution and electoral laws.

In my opinion, the cries for electoral forms are misplaced and constitute a red herring. The real issue should be the consideration of why our Constitution and electoral laws are flouted frequently and sometimes with impunity. However, instead of facing these dilemmas directly, we hide behind cries of electoral reforms. Admittedly, some of the issues identified by reformists are legitimate, but in my view, they are not the most fundamental in evolving a fair electoral process. Electoral cases have been lost not because there are gaps in the law, but because the actors in the electoral processes violate the laws. It is not that there was no law at all. It is because the existing laws were ignored or violated.

The theme of today’s forum namely, “The current political environment and women’s participation in politics” is an ideal and correct subject for discussion. Since the NRM came into power, Uganda has been sensitised and reminded to give women the voice and the right to fully participate in the governance of our country. Women tend to outnumber men in most countries and Uganda is not an exception. The question that arises is why have the women continued to lag behind men in their quest to participate in governance. The answer is partly because of the culture and traditions which generally impede women’s roles in society and the inherent nature of woman versus woman.

Many women fail to distinguish between support for national issues and personal interests of political leaders even if these women have some opinions of their own. Lots of women simply support the incumbent leader of the nation, party or Movement, without expressing and sticking to contrary views which are superior in advancing their interests or those of the nation. Not all politicians or leaders originate and pursue gender and desirable national policies, yet much of the electorate which includes women continue singing loudly the songs of those politicians and leaders whether right or wrong.

In my forthcoming book “Defying the Odds” I have observed: “I have known and worked under politics since my school days to be able to state that players in the game of politics come in all shapes, sizes and characters. They can be anything from honest and principled, to selfish, tricksters, weird, shifters and treacherous procrastinators and if need be, killers without any humanity or remorse in them.

For a few extra dollars, a friend of a life time will be betrayed. For less, the interest of the nation and the welfare of fellow citizens will be compromised or surrendered. In each instance, those in the know will either congratulate or applaud the culprit for such wonderful personal fortunes gotten out of treachery or will keep conspiratory silence. This is Africa where generally speaking, the typical politician, bureaucrat or public servant, tends to act and behave, not according to what is lawful, right and fair but to what are personal interests or are conceived to be the interests of the ruling oligarchy.

Should a conflict arise between the interests of the nation and the wishes of the ruling party or its leaders, the latter must prevail at all costs. The apparent contradiction and distortion of priorities, is not of patriotism or misconceived public duty but a deep-rooted and compelling urge to survive and prosper personally, retain or better one’s public position or accumulate property often at the expense of others. National laws and principled policies are ignored or infringed with impunity in the visible quest to please and serve one’s masters who happen to wield the whip of political power at any given time.

The divergence from deceitful, opportunistic, shifters, treacherous, unreliable, procrastinators, incredulous, mean, ignorant, revengeful, and if need be, killers without any iota of humanity or remorse in them. ”

The divergence from what is right and legitimate to exhibit loyalty beyond the call of duty has in Africa led to what can nowadays be called personalised government. The new philosophy in governance which has slowly but steadily gained credence is the assumed duty to serve one’s leader and not one’s country. The preferable idea that a true leader serves the nation first, his constituency, family, party and self last, has in Africa been turned into reverse.

Indeed, it is not an exaggeration to suggest that whatever is designed or perceived by supporters as interests of the leader invariably becomes and is adopted as the interest and country’s policies.

Any public official or citizen who dares question the principle of placing the leader’s wishes second to some other national preferred priorities however vital they may be, immediately incurs the wrath of both the leaders and their supporters.

Thinkers, compatriots and nationalists who dare believe that national interests are also important are labelled rebels, traitors, if not subversive. They stand the risk of ridicule and become liable to be disciplined or expelled from the royal palaces of the rulers. Nowadays, it is an accepted reality in Africa that whatever is designed or perceived to please the leadership of the country and supporters is quickly translated into national policies of survival which must be implemented at once. This may partly explain why in Africa, constitutions which had been adopted after a long and painful exercises, are easily abrogated or amended when they are perceived to be obstacles to the realisation of new personal interests of the ruling oligarchy.

Political leaders who had been well known for fighting hard to establish free and democratic governments for their people start indulging in threats and boasts that only God can now remove them from political power. Should the free and fair elections for which they fought and saw comrades die for, favour their political rivals by the dictates of the constitution, they would not accept political defeat, but would immediately recommence national armed conflicts and civil wars simply to regain power. Not only did constitutions change beyond what amending provisions had permitted, but ruling political parties dramatically changed beyond the pale of human intelligence in pursuit of personal wealth and comfort.

It is only when women have reached a stage of political maturity to classify the rulers and politicians of this world and become and work with the honest and principled of them and others that women’s participation in politics and governance will be meaningful and a reality

This an edited version of the paper which retired Supreme Court Justice George Kanyeihamba presented at the ACFODE conference on November 19.

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