A Critical Analysis of the Supreme Court Decisions
This article analyses the constitutional and domestic legal framework under which the president of Uganda has been elected since 1995. The focus is on the three Supreme Court decisions in the adjudication of presidential electoral disputes in 2001, 2006 and in 2016. It argues that presidential electoral laws are deficient in their capacity to facilitate fair political contestation. This is because they were not adequately constructed to address electoral malpractices pertaining to Uganda, and they have been interpreted to favour the incumbent.
Keywords: Constitution of Republic of Uganda 1995, electoral offences, presidential elections, presidential electoral laws, presidential electoral petition, Supreme Court
The post-1995 constitutional reforms in Uganda were aimed at averting violent struggles for political power. One of these reforms was the introduction of direct presidential elections. The significance of this is that since the Constitution of 1995 came into force, and for the first time in the country’s history, the majority of Ugandans could elect their president directly. In addition, more Ugandans than before are eligible to stand for election as president. This article studies how the Supreme Court in Uganda has adjudicated presidential electoral disputes since 1995. It evaluates the efficacy of the constitutional and domestic legal framework under which the president of Uganda is elected, in protecting fair political contestation in order to achieve its objectives. This article further argues that presidential electoral laws have been constructed without attention to the electoral lawlessness prevalent in Uganda. These laws make it almost impossible to challenge the outcome of the election, particularly where the declared winner is the incumbent. Therefore, the laws are incapable of converting votes into a truly democratic choice, and are consequently unable to avert violent struggles for political power.
At about 1:40am on the morning of Tuesday, the returning officer of Kaabong district, Sarah Iyolu, declared Rose Lilly Akello winner of the hotly contested by-election for the district’s Woman MP, stretching NRM’s victory in by-elections thus far to six. The other four of the 10 parliamentary by-elections held since the February 18, 2016 elections, have been won by two NRM-leaning independents; Hood Katuramu and William Wilson Nokrach (People with disabilities) and opposition-leaning independents; Robert Kyagulanyi (Bobi Wine, DP) in Kyadondo East and Lucy Achiro Otim, FDC, in Aruu North.
This string of losses by the opposition is in sharp contrast with its show of might during the 2011-2016 cycle, when opposition candidates won most of the by-elections. In Kaabong, the opposition fielded one candidate, FDC’s Judith Adyaka Nalibe, who finished last with 593 votes. A difference of only 256 votes is what NRM’s Akello needed to defeat Christine Tubo Nakwang, an NRM-leaning independent candidate. Akello garnered 21,814 votes against Nakwang’s 21,558 votes.
The seat fell vacant after the Court of Appeal upheld an earlier ruling by the High court in Soroti that nullified Nakwang’s election on grounds of voter bribery. Nakwang slaughtered a ram for a feast and bought drinks for over 100 voters on the eve of the February 18, 2016 elections, contrary to Section 68 of the Parliamentary Elections Act 2007.
Unlike in areas with noticeable opposition support where security deployment was heavy, in Kaabong there was little visible security deployment. According to Crispin Kaheru, the head of Citizens’ Coalition on Electoral Democracy in Uganda (CCEDU), the only visible security personnel were polling constables deployed at polling stations. “Polling officials including polling constables appeared knowledgeable about polling procedures [although] in some instances, they assisted voters to cast their vote, which is against the electoral laws,” Kaheru said. A heavy downpour disrupted counting of votes and the poor road network delayed the transmission of results from across the 19 sub-counties in the district to the tally centre at Kaabong Magistrate’s court hall. According to Kaheru, by 8:30pm, full results from only four sub-counties had been received at the tally centre. Several people gathered outside the tally centre till the wee hours of Tuesday morning when election results were announced. There was an 80 per cent voter turnout. Polling in Monday’s by-election, which has been described by observers as generally peaceful and calm, started late in some areas due to the late arrival of polling officials. There were also issues with the biometric voter verification kits especially in the rural parts of the district where a number of voters were turned away after the machines failed to read their fingerprints. At Meus polling station in Kapalata sub-county, several voters were asked to wash their hands with soap after the presiding officer, Walter Lokiru Ngole, suspected that the machine failed to read their fingerprints because of dirt. In other cases, some polling officials forgot the pin codes for the biometric voter verification kits.
At the tally centre in Kaabong, NRM electoral commission chief Tanga Odoi was at hand to receive his party’s sixth by-election victory. He told The Observer that the victory had further proved NRM’s strength. “This was a tight race between two NRM ladies and the number of votes that separated them today is what [has separated them] in the previous elections, including the party primaries,” Odoi said yesterday. There is no opposition here [Kaabong] and what the NRM needs to do is to sit with them [Akello and Nakwang] and reconcile them,” he added. According to the senior presidential press secretary, Don Wanyama, the NRM by-election victory had disproved the opposition’s claim that 2016 elections were rigged. “It is a testament of how hollow the opposition’s claims are of NRM rigging elections. The by-elections are testament that NRM is still a strong and popular party across the country,” Wanyama said. The NRM Secretariat’s communications officer, Rogers Mulindwa, said that as the party celebrates the recent achievements, it needs to work towards minimising instances that bring up independents. At least 32 of the 66 independent MPs had lost the 2015 NRM primary elections.
Internal bickering within the parties and the failure to create strong structures in the countryside is one of the factors working against the opposition. Party structures are crucial in mobilisation for a candidate as well as assembling machinery for protection of the vote on polling day. NRM boasts of structures at the village level across the country, which is not the case with opposition parties. “The by-elections have exposed a lot of internal disorganisation in the opposition; they are not on ground, they don’t have any structures and are indeed very far from taking state power,” Wanyama said. The president general of the Democratic Party (DP), Norbert Mao, said the opposition has in some instances gone into the by-elections ill-prepared. “The calibre of candidates we take to the elections is very important. Sometimes we have fielded people who are not well known, people with no connection to the community. That is what we [DP] suffered in Aruu North; we took a Kampala- based candidate who had no connection with the community,” Mao said. This could be the same case with Nalibe, the FDC candidate in Kaabong. “In some areas, it is not easy to raise a candidate. Areas like Karamoja, which are state-run areas, having a candidate there is a great achievement,” said FDC spokesman Ssemujju Ibrahim Nganda. According to Ssemujju, it would be unfair to judge the opposition based on areas known to be NRM strongholds. The Leader of Opposition in Parliament, Winfred Kiiza, however, argues that sometimes, the opposition sees no reason of fielding candidates in an election whose outcome is predetermined. “Ugandans are seeing no reason why they should continue voting in an election that they know are already rigged. Credibility of our elections is a big issue that has demoralised voters,” Kiiza said. But Mao thinks opposition parties need to address the issues that have kept them disunited. “To a larger extent, the opposition was united [during the 2011-2016 cycle] unlike now when opposition forces are in disarray and playing into the hands of NRM,” Mao said.
Story Published by The Observer
Kenya’s opposition political party recorded a fourth straight loss in the country’s General Election on August 8, after leader Raila Odinga trailed incumbent Uhuru Kenyatta. Just four days earlier, Rwanda’s Paul Kagame of the Rwanda Patriotic Front (RPF) had trounced his opponents — former journalist and independent candidate Phillipe Mpayimana and Democratic Green Party leader Frank Habineza who garnered less than two per cent of the total votes between them against the president’s over 98 per cent.
Last year, Uganda President Yoweri Museveni through his ruling party National Resistance Movement managed a comfortable albeit contested defeat of the opposition, at 60.6 per cent, to retain power in Kampala. His main challenger, Kizza Besigye of the Forum for Democratic Change (FDC) party, got 35.6 per cent of the votes. In 2015, Tanzania’s dominant party Chama Cha Mapinduzi (CCM) maintained its decades-old hold onto power by beating its opponents in the Chama Cha Democrasia na Maendelo (Chadema). CCM’s John Pombe Magufuli had an almost 20 per cent gap between himself and his closest challenger Edward Lowassa, at 58.46 per cent against 39.9 per cent. Mr Odinga has now challenged President Kenyatta’s 10 percentage point win at the country’s Supreme Court. Representation While the numbers represent only the run for the presidency, representation in executive positions is minimal in each of the four countries.
The exception is Rwanda, where the Constitution guarantees the opposition a 50 per cent share of Cabinet positions. Any appointment of opposition members to executive positions in the other three countries only drains the opposition of much needed numbers, while muting others who expect similar appointments. For his Cabinet, President Museveni tapped from the opposition Betty Amongi from the Uganda People’s Congress (UPC), Nakiwala Kiyingi from the Democratic Party and Betty Kamya, a former presidential candidate and leader of the Uganda Federal Alliance party. Opposition parties also fare badly in parliamentary and local government representation.
Tanzania’s CCM enjoys a clear majority, with 252 seats in Parliament out of 367 (188 constituency seats and 64 women special seats), and the main opposition party Chadema has just 34 directly elected seats and 36 special women seats. The Civic United Front follows has 42 seats (32 direct constituency and 10 women seats). Uganda’s NRM enjoys a parliamentary majority with 293 of the 426 seats. The party is followed by independent MPs with 66 seats, while the combined opposition has 57 shared between FDC at 36, the Democratic Party at 15 and UPC with six seats.
The army, which usually sides with the ruling party, has 10 special seats. Democracy What does the poor showing of the opposition mean for democracy in the region? In Rwanda, Tanzania and Uganda, the opposition numbers are too small to significantly challenge the ruling party and influence policy. Lack of numbers in elected positions means less financial resources for the opposition.
Crispy Kaheru, an elections specialist and the co-ordinator of Citizens Coalition for Electoral Democracy in Uganda (CCEDU), says that the opposition’s poor showing means that they need to “go back to the drawing board and re-evaluate themselves. They need to realise that they cannot continue doing business as usual, and design new strategies like forming alliances and moving from the traditional template of social ideals that framed the formation of parties at Independence.” In its report of Tanzania’s 2015 elections, the Commonwealth Observer group noted: “The Group observed the dominance of the governing CCM party in the election campaign. They appeared extremely well-resourced and organised. The CCM, as the governing party, appeared to enjoy advantages of incumbency.
The opposition parties, namely Chadema, CUF and others, also had profiles on the ground but appeared to be less resourced, which had an impact on the conduct of their campaign.” Mr Kaheru, a member of the African Union expert panel of election observers and has observed elections in Uganda, Kenya, Ghana, Zimbabwe and South Africa, noted, “There is a need to re-examine the advantages of incumbency in elections vis a vis opposition in the region. There are of course reasons that explain this,” he said. Control of security and agencies that coerce the electorate, control of state coffers, and public service apparatus aid in the creation of a “firm network for them to carry out campaigning effectively,” he added. Incumbents also enjoy the advantage of setting electoral legislation.
While a number of opposition parties support the RPF and actively and openly campaigned for President Kagame in the just concluded elections, it is difficult to tell exactly how their collaboration aids alternative voices and their ability to keep the party in power in check. Opposition parties have cried foul over manipulation of processes, a tilted playing field, incumbents access and abuse of resources and outright rigging. However, their own lack of organisation, inability to guard their votes and inadequate resources have played a role in their losses.
This article was Published by The East African
The Citizens' Coalition for Electoral Democracy in Uganda (CCEDU) has called for torelance, peace and respect for the constitution and rule of law. The call was made by the CCEDU co-ordinator, Crispy Kaheru on Friday evening as Kenyans waited for the announcement of the winner for the August 8 presidential elections.
Kaheru called on the losers to respect the outcome of the election, emphasizing that Kenyans do not want to live on a diet of hatred and fear. He encouraged the new government to consider the ethinic shades of the Kenyans when forming the new government.
“This will involve an inclusive discussion on the future of the nation and its political and social order,” he said. By Friday evening, results indicated Uhuru Kenyatta leading with 54%, closely followed by Raila Odinga with 44%, although Odinga disputed the results saying the transmission had been hacked into.
Published by The Newvison
photo: Kenyan Elections
August 10, 2017
The Carter Center commends the people of Kenya for the remarkable patience and resolve they demonstrated during the Aug. 8 elections for president, governors, senators, the national assembly, women’s representatives, and county assemblies. In an impressive display of their commitment to the democratic process, Kenyans were undeterred by long lines and cast their ballots in a generally calm and peaceful atmosphere.
While the Kenyan people have spoken at the ballot box, the electoral process is still ongoing as the Independent Electoral and Boundaries Commission (IEBC) continues to tabulate and finalize results. Until official results are announced, it is critical that all parties and candidates refrain from making declarations about the results.
Although election day voting and counting processes functioned smoothly, the electronic transmission of results from the polling stations to the 290 constituency centers, where official results are tallied, proved unreliable. The IEBC advised election officials to revert to the paper copies of the results forms, which provided a reliable mechanism to tabulate the results. Unofficial results were also transmitted to the national tally center, where they were posted on its website. Unfortunately, the early display of vote tallies at the national level was not accompanied by the scans of polling station results forms as planned, nor labelled unofficial, leading to some confusion regarding the status of official results.
In light of these problems, the IEBC issued a statement on Aug. 9 calling for patience while the tallying process continued. In addition, the IEBC stated that the presidential results reported on the website were unofficial – the official results are those tallied at the constituencies. Citing complaints about the electronic results transmission system and other problems, opposition candidate Raila Odinga said that the tally of results at the national tally center was not legitimate and that he would not accept unsubstantiated results. Coupled with the trouble experienced in data transmission, these statements resulted in increased tension among his supporters and created concerns about a threat of violence in some areas of the country.
Despite initial problems with the electronic results transmission, the paper balloting and polling station results forms provided a verifiable mechanism to conduct tabulation in the absence of the electronically scanned results forms. The IEBC is continuing to finalize the tabulation process at the 290 constituency centers, where polling station presidential results forms (Form 34A) are tabulated to calculate the total constituency results (Form 34B), which are then brought to the IEBC national tally center. As in the polling stations, political party agents on the national level had full access to the tallying processes and could cross-check the Form 34A results against copies that were available to party agents in the polling stations. In addition, the IEBC is making scanned copies of forms 34A available to candidates and the public online.
The IEBC’s tabulation process, if fully implemented, allows for a high level of transparency and accountability. The IEBC should continue to collect and publish results transparently until the process is concluded, so that the overall integrity of the process can be verified. In addition, all parties and their agents should enjoy full access to the IEBC’s tallying processes at all levels so that any discrepancies can be reviewed and discovered.
As the process continues, it is essential that all Kenyans maintain their commitment to peace. If there are disputes about official election results, The Carter Center urges candidates and parties to use established legal channels to resolve them and to ensure that their supporters remain calm throughout the remaining electoral period.
Carter Center Observation Mission. The Center’s short-term election observation mission for the Aug. 8 elections was led by John Kerry, former U.S. secretary of state and Dr. Aminata Touré, former prime minister of Senegal. The mission included more than 100 observers hailing from 34 countries in Africa and around the world. On election day, Carter Center observers assessed the electoral process in 424 polling stations in 185 constituencies across 39 counties, and the vote tallying process in 36 constituency tally centers.
The Carter Center’s observation mission has benefitted from close collaboration with other international observation missions, including the African Union, COMESA, the Commonwealth, the East African Community, the European Union, ICGLR, IGAD, and the National Democratic Institute, as well as from consultations with key Kenya election observation groups and other stakeholders.
Carter Center observers will remain in Kenya for several more weeks to assess the conclusion of vote tallying and the post-election environment, including any challenges to the results. The Center will issue additional public statements and reports, as well as a comprehensive final report three- to six months after the conclusion of the process.
Based on more than three months of field assessments and reporting, the Center’s key findings and conclusions include:
· Election day – Voting and Counting. Carter Center observers reported that election-day processes took place in a calm and peaceful atmosphere, and that the opening, polling, closing, and counting process were generally well-conducted. The Kenya Integrated Election Management System (KIEMS) for the biometric identification of voters functioned well in most polling stations, serving as an effective means to prevent multiple voting and to dispel concerns regarding the voter registry. Carter Center observers reported various procedural irregularities that may have resulted from insufficient poll worker training and civic education. For example, many polling stations failed to fill out forms consistently for voters whom the KIEMS system did not recognize, but who were allowed to vote if they provided required ID and were on the voter list. Carter Center observers reported that these instances did not detract significantly from the overall integrity of the electoral process. At a few polling stations, observers noted isolated incidents of misconduct by poll workers, e.g., appearing to invalidate ballots, misdirecting voters to cast ballots in the wrong box, or "assisting" voters who didn't need assistance. Overall, Center observers assessed polling as “very good” or “reasonable” in 406 of 422 polling stations they visited.
· Vote Tallying and Results Transmission. As noted above, the electronic transmission of polling station results forms from the polling station level to the 290 constituency centers and to the national tally center proved unreliable. While the data entry of the results from the KIEMS system transmitted successfully to the national tally center, the early display of these tallies was not substantiated by scanned copies of the polling station results forms for the presidential race. Nor were these results clearly labeled as unofficial. Given that the tallying process is ongoing, the Center is currently unable to provide an overall assessment. We will continue to monitor tallying and election results processes in the weeks ahead.
· Legal Framework: Kenya has a generally sound and comprehensive legal framework for the conduct of democratic elections. It is regrettable that parliament decided not to apply the Campaign Finance Act to these elections. This allowed parties and candidates to raise and spend any amount of money without public scrutiny. In addition, parliament did not pass legislation to implement Article 81(b) of the constitution mandating that not more than two-thirds of elective bodies be of the same gender.
· Campaign: Voters had a wide choice of contestants, all of whom were able to campaign freely without interference from the state. This resulted in competitive and meaningful elections in most areas of the country. The campaign saw polarizing rhetoric between the top contenders for the presidential race and key down-ballot races. There were breaches of the electoral code of conduct, which were largely ignored. Generally, candidate campaigns geared up toward the latter party of July, with the exception of the campaign for the presidential race. The campaign for president was vigorous, with both leading candidates conducting large rallies across the country. Campaigning for other races was more subdued due to a lack of financial resources.
· Electoral Institutions: Unfortunately, some candidates used myriad court challenges to criticize and delegitimize the authority and competence of the IEBC and the judiciary. Some candidates used ethnic identity as a campaign tactic, and multiple instances of hate speech were reported. On Aug. 2, the chief justice of the Supreme Court issued a statement condemning increasing pressure on the judiciary by the political parties.
Although the current IEBC commissioners were not appointed until late January and faced delays because of court challenges to many of their decisions, they still met most of the legal deadlines and delivered the elections on the constitutionally mandated date. However, the commission did not sufficiently communicate with stakeholders. The lack of transparency about its decision-making negatively affecting the confidence and trust of the electorate and political parties. The late modification of rules surrounding the elections, such as conflicting instructions on valid/invalid ballots, sowed some confusion and raised suspicions among opposition parties.
· Election Laws: The legal framework contains certain gaps and inconsistencies, including overlapping jurisdiction of the IEBC and the Political Parties Dispute Tribunal (PPDT); too-long deadlines for the resolution of electoral disputes, including candidate nominations; the absence of regulations or procedures for resolving election-day disputes; inconsistent timelines for voter registration; verification and audit of the voter register; vague nomination rules; and some unclear election-day procedures.
· Security and Violence: Although the pre-election environment was generally calm, the murder of Chris Manado, the acting head of IEBC’s ICT department, barely a week before the election was a deplorable act. In addition, given Msando’s important role in the election machinery, his death affected the public mood and instilled fear. On Aug. 4, NASA offices were ransacked, allegedly by security personnel. Finally, the government deployed some 180,000 police and other security officials around the country. While essential for maintaining law and order, many opposition areas regarded this show of force as threatening, given the country’s recent history of elections. Since Tuesday’s election, some episodes of violence have occurred in various parts of the country, including the death of two people who were reportedly shot by police officers in the outskirts of Nairobi.
· IEBC Staff: Training of polling staff was in line with the electoral calendar and was well-organized, comprehensive, and interactive. Commendably, issues that required a uniform approach by IEBC staff were raised at the plenary sessions and either agreed upon or referred to the IEBC for clarification in order to provide for an adequate follow-up.
· Participation of women, youth and persons with disabilities: Regrettably, women, youth, and people with disabilities made only marginal gains in the 2017 election. At least half of the women in office in 2013 competed again in 2017, running as incumbents or contesting for different seats. At the time of this statement, it appears that Kenya will elect its first female governors and slightly increase the number of elected women members of parliament. Women groups and allies continue to advocate for enforcement of the two-thirds gender rule, which requires that all elected and appointed bodies have not more two-thirds of one gender. Youth informed IEBC decision-making through a formal and broadly representative Youth Advisory Committee. Persons with Disabilities groups supported PWDs aspirants and candidates.
· Voter registration: Although the IEBC took commendable steps to clean up the voter register, the lack of transparency during the audit process and the initial reluctance by the IEBC to release the full KPMG report hurt public confidence in KPMG’s work and the subsequent steps taken by the IEBC. Though much work remains to address concerns raised in the audit regarding the accuracy of the voter registry, our observers found that the KIEMs functioned properly in 97.6 percent of the polling stations observed and served as an effective mechanism to validate voter eligibility.
· Candidate Registration: The nominations process highlighted the uncertainty and ineffectiveness over what criteria are applicable in order to determine whether a candidate has met the requirements of Chapter Six of the Constitution on Leadership and Integrity. The Ethics and Anti-Corruption Commission (EACC) compiled and forwarded to the IEBC a list of 106 aspirants whose integrity was under suspicion; however, the IEBC took no action and cleared all candidates.
· Election Dispute Resolution: The new Election Offences Act (EOA) adopted in 2016 contains a number of offenses that overlap with the Electoral Code of Conduct, the Penal Code, the National Cohesion and Integration Act, and the Public Order Act, which created confusion as to which body had jurisdiction over electoral offenses. Nevertheless, the judicial system of Kenya and its election laws provide full and adequate accountability for the election.
· Party Primaries: The primaries were chaotic and conducted with little regard for the rules, particularly the requirement that only party members be allowed to vote in the primary. Many of the initial results were overturned by the PPDT on the basis that non-party members voted. Because of this, many had to be re-run. Other problems noted during the primaries included polls not opening on time, lack of control over polling places, and certificates being awarded to the person who lost. There were still a number of cases pending in the courts on election day.
· Civil Society Organizations (CSOs): CSOs played an important role in observing all aspects of the election process, releasing reports of their findings inclusive of recommendations for improvement of the electoral system. CSOs and faith-based groups played a key role in promoting peace and mitigating conflict.
Background: Carter Center Election Observation Mission. In response to an invitation from the Independent Electoral and Boundaries Commission, the Carter Center launched an international election observation mission in April 2017, with six core team experts based in Nairobi and 12 long-term observers deployed across the country to assess the campaign and electoral preparations.
The Center’s assessment of the electoral process is based on Kenya’s legal framework and on international standards for democratic elections. The Center conducts its observation missions in accordance with the 2005 Declaration of Principles for International Election Observation and the Code of Conduct for International Election Observers.