New EC membership, same age-old problems

Justice Simon Byabakama swears in as the new EC chairperson on Wednesday at the High Court in Kampala. PHOTOS BY MICHAEL KAKUMIRIZI.

What you need to know:

  • Ignored. By appointing a new team President Museveni seems to have ignored civil society and Opposition parties that for long have asked him to reform the commission to deliver a credible electoral process. The team is a composition of new members but with old-age challenges, Stephen Kafeero writes.

In his inaugural speech, after being sworn in as the new Electoral Commission chairperson, Justice Simon Byabakama made a passionate plea to Ugandans especially critics to give him time to deliver on his mandate.
In making the plea, Justice Byabakama was well aware of the documented lack of confidence in the electoral body and did not shy away from taking note of this, before stating his credentials of being “independent”.
“I am coming from a background were being independent is a prerequisite of exercise of the judicial power. Fortunately or unfortunately, I am not about to throw off that gown and leave it in court,” he said.
Unfortunately for him, Justice Byabakama has in the past been found to have thrown off that “gown” particularly during his time at the Directorate of Public Prosecutions (DPP).

As deputy DPP, Justice Byabakama was the lead prosecutor in the famous “Besigye rape” case against Opposition leader Dr Kizza Besigye, a man he is likely to deal with often during his tenure at EC.
Quoting Lord Brougham, Justice John Bosco Katutsi of the High Court who presided over the case declared Justice Byabakama’s evidence against Dr Besigye as “inadequate even to prove a debt, impotent to deprive of a civil right, ridiculous for convicting of the pettiest offence, scandalous if brought forward to support a charge of any grave character, monstrous if to ruin the honour of a man who offered himself as a candidate for the highest office of this country.”

The DPP “is an autonomous institution not subject to the direction or control of any person or authority” but the charges Justice Byabakama sanctioned against Dr Besigye in that trial were not only found to be “crude and amateurish” by Justice Katutsi, but were widely seen and described as politically motivated.
Justice Byamukama will be looking back at his time at the DPP as he takes charge of EC.
EC is by law expected to be “independent and not subject to the direction or control of any person or authority” yet Justice Byabakama’s predecessors have all but been described as impartial, largely because of how they are appointed and the execution of their mandate.

Opposition Forum for Democratic Change (FDC) spokesperson Ibrahim Ssemujju Nganda has variously opined that even if it was him appointed to lead the electoral body under the current framework, he would make “the worst character”.

Can the Justice Byabakama led EC do better than their predecessors?
President Museveni, in a November 14 letter to Speaker of Parliament Rebecca Kadaga, appointed Justice Byabakama to replace Dr Badru Kiggundu as EC chairperson.
Also appointed where Ms Aisha Lubega (vice chairperson), commissioners Peter Emorut, former Kajara MP Stephen Tashobya, Prof George Piwang, whose name was silently withdrawn and replaced with Ms Nathaline Etomaru and Mustapha Ssebaggala Kigozi.

The new appointees will join Ms Justine A. Mugabi whose tenure at EC is yet to expire.
The appointments were against calls from civil society organisations, election observer groups, opposition political parties, the academia and many other groups not to appoint the “new” EC without “reforms”.
Evidence available suggests that Justice Byabakama’s team may not do any better than their predecessors and as Mr Ssemujju argues, they may find themselves captive of a system they are inheriting.
The Inter-Party Coalition for Dialogue (IPOD) constituted by political parties with representation in Parliament has been at the forefront of pushing for reforms to a point that threatened the body’s break up.
A section of IPOD members led by then DP’s secretary general Mathias Nsubuga met President Museveni at the start of July, 2016 at State House, Entebbe, a move that was opposed by FDC. The party announced a tactical withdrawal from IPOD following the meeting.
Mr Nsubuga, who passed away in December, is reported to have appealed to the incumbent to ask Parliament to extend the term of the Dr Kiggundu-led EC for at least six month to pave way for the appointment of an EC acceptable to all the stakeholders.

Mr Museveni appears to have ignored the request since he went ahead and made the appointments.
Most of EC’s problems are rooted in structural and institutional gaps that analysts say cannot be solved without “comprehensive reforms”.
Those in favour of reforms argue that EC can only deliver on its mandate if it’s freed from any obligation real or perceived to any of the candidates.
The 2001, 2006 and 2016 presidential polls Supreme Court rulings all fault EC in one way or the other despite a change of leadership.

EC was in 2001 chaired by the late Aziz Kasujja while Dr Kiggundu assumed the reigns until after the 2016 polls. The situation even gets worse when it comes to parliamentary petitions.
When it comes to how business is conducted at the electoral body, the major focus is often on the commissioners who shoulder most of the blame. There is little scrutiny on the secretariat which actually runs the show. While assessing Dr Kiggundu’s tenure, DP’s Norbert Mao says commissioners are “surrounded by NRM operatives who report to Museveni”.

For example, in 2002 a select committee of Parliament found that EC secretary Sam Rwakoojo “did not have the relevant qualifications” to hold that position. Similarly the Public Service Commission had earlier in 2001 raised queries questioning Mr Rwakoojo’s suitability to lead EC’s daily operations.
Patrick J. Muzaale, the Public Service Commission chairperson argued that Mr Rwakoojo not only lacked the relevant experience but had been fronting a foreign company that did business with EC.
More than 16 years later and two commissions gone, Mr Rwakoojo ushered in another “new” EC.

More of the same
Ahead of the 2016 general elections, CSOs backed by politicians and activists mainly from the Opposition mounted a sustained campaign for electoral reforms, developing a Citizen’s Compact with a raft of suggested reforms that, if enacted, would see a radical transformation from what EC is now.

The proposed reforms included the restoration of the President’s tenure to two five-year terms, reducing the size of Parliament in line with modest resources of the State, establishing a new independent and impartial EC, putting in place a new verifiable register of all voters, including eligible Ugandans in the diaspora, and carrying out the election of LC3, LC5, MPs and the President on the same day.
Others proposals included, eliminating the military from the electoral process, the President relinquishing command of the armed forces to the Joint Chiefs and not serving as chairperson of the UDPF High Command during elections, removing army representatives from Parliament, abolishing the office of the Resident District Commissioners and Cabinet ministers not being MPs.

Most of the proposals in the Citizen’s Compact had already been addressed by IPOD. Under IPOD, the political parties had agreed on 43 out of the 48 proposed electoral reforms.
However, when the 9th Parliament passed the Constitutional Amendment Bill ahead of the elections, the only notable reform was the declaration that EC will cease to be known as such but as “Independent Electoral Commission”. This too, was never implemented.

In an interview, former Lands minister Daudi Migereko, who was one of the representatives of NRM in IPOD, said the proposals were not going to waste because they are incorporated in the different electoral laws.
“Only the proposals which require amendments to the Constitution were not considered. There is an opportunity, however, in the Constitutional Review Commission that Justice minister [Kahinda Otafiire] has been talking about. Once constituted, they will listen to all the proposals. All is not lost,” he said.
In their ruling last year, while dismissing former presidential candidate Amama Mbabazi’s petition challenging the re-election of President Museveni, the Supreme Court justices castigated the Executive and Parliament for ignoring recommendations contained in the rulings on previous petitions of 2001 and 2006.
By the time of the Supreme Court ruling, Justice Byabakama was a member of the lower Court of Appeal.

Supreme court recommendation
He was, however, categorical when he spoke before Chief Justice Bart Katureebe who presided over the swearing in ceremony promising to put into action the recommendations made by the Supreme Court.
It is on this basis, that Crispin Kaheru, the coordinator of Citizens’ Coalition for Electoral Democracy in Uganda, has thrown a challenge to Justice Byabakama, if he is serious about instituting reforms.
“The new EC has an opportunity to redeem its image in its first year,” Mr Kaheru said, adding that “using its constitutional mandate the new EC should immediately consider setting up a Special Reform Committee comprising political parties, governance institutions and civil society organisations.”
The committee, Mr Kaheru explains, should be charged with fusing various electoral reform proposals by the Supreme Court, political parties, civil society organisations, election observers and other stakeholders into meaningful reforms.

The fused reforms, he adds, should improve the “transparency, inclusiveness and credibility of subsequent electoral processes as well as strengthen institutional framework of key electoral stakeholders such as EC, political parties and civil society organisations”.

“EC should then carry the proposals and be seen to be championing their passage and genuine implementation. Such a move would not only go a long way in changing perceptions, but also inject vigour and belief in the new EC and the electoral system,” he says.
Winnie Kizza, the Leader of Opposition in Parliament, does not share Mr Kaheru’s optimism.
On December 5, she rallied Opposition law makers who sit on Parliament’s Appointments Committee to boycotted the vetting of Mr Byabakama and his team.
Ms Kizza wanted the President to first meet different stakeholders under the auspices of IPOD and discuss political and electoral reforms, including the constitution of EC.

Against Justice Byabakama
Mr Mao together with a delegation of DP members had also petitioned Speaker Rebecca Kadaga demanding that Parliament stays the vetting pending reforms.
The attempts, however, did not deter the ruling NRM-dominated committee chaired by Ms Kadaga to approve the new EC team.

“We are still going to oppose them [EC]. The one who appoints them gives them instructions and they must obey because if they don’t, they get fired,” said Mr Mao
Perhaps more informed of what is at stake having been a candidate in the EC-organised polls in the last four general elections, Dr Besigye has branded as “irrelevant” any debate about EC without reforms.
“It doesn’t matter, they will all be some form of Kiggundu regardless of whether they have big or small eyes,” Dr Besigye said shortly after President Museveni’s appointment of the new EC.
Mr Mwambutsya Ndebesa, a political historian at Makerere University, says the new team can be independent if they chose to but that independence would come at a “very big cost”.

“If they don’t toe the correct line, they will be reshuffled before a major election. It is possible to be independent like the Gambian EC chair has shown,” says Mr Ndebesa who was part of a team of Makerere University lecturers who published a review of the 2016 general elections and electoral process.
“President Museveni does not appoint commissioners to be independent and the framework within which the commissioners work, does not favour any independence,” he adds.

Conspiracy theorists
NRM’s electoral commission chairperson Tanga Odoi says the new EC must be given a chance because both Justice Byabakama and Ms Lubega are individuals with “impeccable character” to turn around EC.
“Conspiracy theorists will fail with [Justice] Byabakama. The Judiciary has lost one of the best judges and EC has gained,” he says.
Dr Odoi, who claims to have worked with Ms Lubega when he was still a secondary school teacher, says critics get it wrong when they assume President Museveni appoints sycophants to top jobs.

The view
“The new EC has an opportunity to redeem its image ... using its constitutional mandate it should immediately consider setting up a Special Reform Committee comprising of political parties, governance institutions and civil society organisations,”
Crispin Kaheru, the Coordinator of Citizens’ Coalition for Electoral Democracy in Uganda

“Conspiracy theorists will fail with [Justice] Byabakama. The Judiciary has lost one of the best judges and EC has gained,”
Dr Tanga Odoi, NRM electoral commission chairperson

Issues with Rwakoojo

Critics have also had issues with Mr Sam Rwakoojo wondering why he has been kept as secretary general even after being declared unfit for the position.
In 2002 a select committee of Parliament found that Mr Rwakoojo “did not have the relevant qualifications” to hold that position.
Similarly the Public Service Commission had in 2001 raised queries questioning his suitability to lead EC’s daily operations with Mr Patrick J. Muzaale, the Public Service Commission chairperson, arguing that Mr Rwakoojo not only lacked the relevant experience but had been fronting a foreign company that did business with EC.
More than 16 years later and two commissions gone, Mr Rwakoojo ushered in another EC.

Other EC members

Ms Aisha Lubega, EC vice chairperson

Mr Ssebaggala Kigozi, commissioner

Mr Stephen Tashobya, commissioner

Ms Nathaline Etomaru, commissioner

Justine A. Mugabi, commissioner