UGANDA'S FLAWED ELECTIONS: Nominations exercise critique

OBSERVERS’ REPORT
43. Nominations opened at 9 a.m. and closed at 12 noon on 25 November - the date of the arrival of the main body of the Group in Uganda, who were therefore unable to be present at nomination centres. Those of us who had come in advance were, however, able to witness the nomination process in the Kampala and Mukono districts. The results of the nominations provoked an immediate outcry throughout the country and the complaints arising from the handling of nominations became one of our main focal points of enquiry.

44. Each party was required to file lists of intending candidates with the Electoral Commission, and those who sought nomination who were not on the relevant list needed to produce letters of introduction from their party, evidencing its wish that their names be substituted.

45. By law, each returning officer was required to attend his nomination centre from 9 a.m. to 12 noon on nomination day to receive the nomination papers of candidates. Once a nomination paper and a candidate's consent to nomination has been delivered and a deposit paid, a candidate is by law deemed to stand nominated unless and until the returning officer decides that the nomination paper is invalid. In practice this decision is made and publicly announced on nomination day.

46. A nomination paper must be delivered by a candidate in person, be proposed and seconded, also in person, by voters registered in the constituency concerned and be supported in writing by no fewer than 10 such additional registered voters.

47. Each nomination paper must be accompanied by a declaration in the form prescribed and an income tax clearance certificate.
Where a candidate has not previously sat in the National Assembly, and has not attained certain educational standards, he must also provide a certificate of proficiency in the English language.

48. Members of the public service are ineligible for nomination. It had been widely publicised that public servants wishing to stand in the election, then scheduled for 30 September, were required to have resigned by 30 July 1980.

49. A returning officer is entitled to rule a nomination paper invalid on only one of three grounds -
a) that the particulars of the candidate or the persons subscribing the paper are not as required by law or
b) that the paper is not subscribed as required or
c) that the paper is not accompanied by the required statutory declaration or by a certificate of proficiency in the English language if such be required.
50. Where a returning officer decides that a nomination paper is invalid, he must endorse on the paper the reasons for his decision .

51. There seemed to us to be a widespread misunderstand of the law. The impression we gained was that many returning officers, and indeed many prospective candidates, believed that if nomination papers had not been checked and passed by the returning officer by 12 noon, prospective candidate'- were to be ruled as being out of time regardless of how early in the day they may have presented themselves at the nomination centre. In our view the law in the matter is quite plain. The returning officer is obliged to receive the papers from all prospective candidates who present themselves at his office between the stated hours. We make this point because of the persistent complaint that some returning officers tended to process the nominations of UPC candidates ahead of all the rest, and because of events in Kasese to which we refer later.

52. On 25 November the UPC secured 15 unopposed returns - Arua (5), Moyo (1), Lira (4),.Apac (3), Soroti (1) and Kotido (1). Only in Masaka North did the prospective UPC candidate fail to achieve nomination on nomination day and this by virtue of non-presentation of the necessary income tax certificate. On 8 December, however, his nomination was declared to be valid.

53. The other three parties all encountered problems. The DP secured 110 nominations (which on 8 December were reduced to 107), the UPM 76 and the Conservative Party 47. We received a large number of complaints from them. In some instances we formed the view that through lack of organisation or lack of information they had contributed towards their own misfortune .
ln other instances, however, we were convinced that the law had been applied incorrectly, selectively or in a manner contrary to its spirit.

54. We now deal with the districts in which the more controversial unopposed nominations took place.
55. Arua. The five unopposed returns in Arua district have attracted the most attention. In our Interim Report we dealt with the common factor underlying the rejection of all five DP candidates - the failure to produce income tax clearance certificates. However, it is fair to point out that in only one instance - Arua South West - was this the sole cause of failure.

Additional causes cited by the Electoral Commission were a failure to resign from a post as teacher (1), a failure to produce a letter of introduction from party headquarters to confirm replacement of candidature (2), failure to produce a letter of acceptance of resignation from the public service (2 an absence of a certificate of proficiency in English (I), and a failure to tender an affidavit in lieu of support by 12 registered voters (1).

56. Because of the difficulties, it was a widely-held view that no election would take place in the region on 10 December. The DP said that the first they knew of the decision to hold elections in the West Nile, traditionally regarded as a DP stronghold, was when an announcement to this effect was made on Thursday, 20 November. On account of the security problems involved in travel, there was thus not enough time for the party to organise the essential income tax clearances and also have their candidates physically present in Arua, with the papers, 9 a.m. the following Tuesday.

The DP acknowledged to us that they were caught unawares. The UPC said they, too, had had no oadvance warning of the decision and had prepared themselves for the eventuality of a contest in the West Nile only out of an abundance of caution. This, the UPC said, and this alone, accounted for their ability to fulfil certain of the legal requirements both in the West Nile and almost every other constituency.

57. The Electoral Commission confirmed to us that it had, agreed with the DP that, in the circumstances, the requirement of production, of an income tax clearance would, be deferred to later date. The Commission said that it had notified the returning officer for Arua accordingly. The UPC told us they were not so advised.

58. We were impressed by the readiness of the administration to provide essential security escorts so as to enable the DP candidates to travel to Arua for nomination day, but found this contrasted with a complete absence of sympathy when we took up the matter of the rejection of their papers.

59. In the event, no poll took place in Arua or Moyo. However in the light of the above we must comment that if the preperation of registers is, as by Ugandan law it would appear to be, an essential preliminary to the holding of an election, this condition was demonstrably not fulfilled in any of the three West Nile districts which, between them, contained 8 constituencies. Our view in this- is confirmed by a list of constituencies and registered voters brought out by the Electoral Commission in which the number of registered voters in the 8 West Nile constituencies is an eloquent blank. The list appears as Annex 2.

60. Nor are we aware of any amendment to the law by which this requirement may have been waived. The substitution of an affidavit therefore appears to lack any basis in law. Lest we appear pedantic in this regard, we would add that the position adopted by the Military Commission was that the Electoral Commission had no power to waive any legal requirements.

61. Having said this, we acknowledge that political considerations of territorial integrity and national sovereignty may have prompted the Military Commission's decision to proceed with elections irrespective of conditions on the ground. In our view many of the ensuing problems could have been avoided if all the political parties had been taken into confidence and appropriate amendments made to the electoral law.

62. Moyo. Quite apart from the question of there being no registers of voters in Moyo, it was alleged to us that the prospective DP candidate had, on nomination day, been forcibly detained by the Ugandan Army. The prospective candidate went so far as to claim that his UPC opponent was involved in his detention. The Electoral Commission told us that all security matters were outside their purview. When we took the matter up with the Chairman of the Military Commission, we were informed that the prospective candidate had become suspect on account of collaboration with the invading forces and that the President General of the DP, Mr. Ssemogerere, had been warned about this in advance.

63. However, the UPM also alleged that their candidate for Moyo constituency had been detained by soldiers and after being released, was intercepted again together with his supporters just outside the nomination centre and was not released until five minutes after midday. We were unable to obtain any official response to this allegation.

64. Tororo. In Tororo district, the UPM claimed that two of its candidates had been disqualified on the grounds that they did not produce evidence of their educational qualifications or, in lieu, certificates of proficiency in English. As one of these was well known to have been a lecturer at Makerere University and the other was a Deputy Minister of Internal Affairs in the Government, we could not escape the conclusion that the law was being applied with needless rigidity.

The letter of the law does not make the production of proof of educational qualifications mandatory, though in practice such evidence was tendered by most other candidates, UPM candidates among them.
65. Lira and Apac. Again in the seven constituencies in Lira and Apac, the DP alleged that on nomination day all but one of its candidates were forcibly prevented by UPC supporters from reaching the nomination centre. Only its candidate for Apac North managed to get as far as the nomination centre but the 12 supporters with him were chased away and as a result his proposer and seconder were not present as required by law.

66. When asked by the Group what action the Electoral Commission proposed to take regarding these allegations, the Chairman replied that the Commission was awaiting the reports of the Returning Officers concerned and would let the Group know as soon as they were received. Nothirg further was heard from the Commission about them.

67. Kasese. The events in Kasese district troubled us deeply. There the nomination papers of all three DP candidates were accepted, notified to the Electoral Commission, published by the Electoral Commission and gazetted on 5 December 1980. Then on 8 December 1980, almost a fortnight after nomination day and barely 36 hours before the polls were to open, Radio Uganda announced that the Chairman of the Electoral Commission had declared the nominations of all three candidates to be null and void on the grounds that the nomination papers had been submitted after 12 noon and only accepted by the returning officer under duress. Our Chairman met immediately with the Chairman of the Military Commission and then with the Chairman of the Electoral Commission to discuss the matter, and members of the Group visited Kasese to make their own independent enquiries on the spot.

After they had reported back, our Chairman met again with the Chairman of the Electoral Commission and told him that we could not accept that the three nominations were invalid. A later radio announcement quoted the Returning Officer for Kasese as claiming sole responsibility for the reversal, but we are satisfied that the facts are as originally stated in the radio announcement, namely that it was the Electoral Commission which had annulled the nominations.

68. We were unable to accept the explanation given to us by the Chairman of the Electoral Commission. It is quite clear that the nomination papers of all three DP candidates were tendered prior to 12 noon. When we inspected the nomination papers in question we noticed that a clumsy attempt had been made to alter the time of receipt from 11.58 a.m. to 12.05 p.m. in respect of the last DP candidate to be processed.

69. Even if the later time be true, the returning officer in question admitted to us that he did not open his office for nominations until 9.30 a.m., and members of his staff placed the time as being even later. Additionally, the returning officer admitted that all three DP candidates were present when his office opened, and we verified this independently. We were also provided with a copy of a letter dated 27 November from the returning officer to the Electoral Commission (Annex 3) which unequivocally states that at least the nominations of the first two DP candidates had been processed by 12 noon. At no stage did the returning officer suggest to members of our Group that the nomination papers of the prospective candidates were other than as required by law.

70. We immediately took the matter up with both the Electoral Commission and the Military Commission, as we knew that sufficient election materials were already en route to Kasese to enable polling to take place in all three constituencies. The Electoral Commission endeavoured to explain away all that had taken place on the basis that they were merely acting to correct a clerical error which had occurred within the Electoral Commission's secretariat. The reply from the Chairman of the Military Commission dated 9 December 1980 appears in Annex 1.,

71. In all the circumstances we have no option but to conclude that the action taken by the Electoral Commission in declaring the nominations to be null and void was contrary to law and had no basis in fact.

72. As a result, two UPC candidates were declared elected unopposed. In Kasese North, the electoral contest was reduced to a straight contest between the UPC and the UPM, which the latter won by a narrow margin.

73. The intervention of the Electoral Commission to rule out the DP candidates at the eleventh hour contrasts with the last minute reinstatement of the UPC candidate for Masaka North, whose papers had previously been ruled out of order by reason of non-presentation of an income tax certificate. This was explained on the basis that the returning officer had written to the Electoral Commission some 4 days after the close of nominations requesting that the candidate's name be added to the list of nominated candidates.

However, this suggestion must be contrasted with the well-known rejection of his papers on nomination day and the omission of his name from two different lists of candidates published by the Electoral Commission. We find difficulty in accepting that clerical error lay at the root of this amendment, and we could not but conclude that not only were the DP candidates in Kasese unlawfully disqualified but the UPC candidate in Masaka North reinstated illegally.

74. As we observed in our Interim Report, due allowance must beirade for the superior organisation of the UPC, which undoubtedly contributed in large measure towards its candidates successfully achieving nomination. "However, when we view the way in which some returning officers acted when processing nomination papers of other parties, and the part played by the Electoral Commission itself in respect of Kasese and Masaka North, a finding of partiality cannot be resisted.

75. The effect of the unopposed returns on the arithmetic of the outcome is difficult to assess. Some of theseats in-question would almost certainly have fallen to the UPC had polling taken place, but equally in some others the DP would have stood a good chance of victory.

76. By virtue of the amendment to the electoral law to which we referred in para. 19 it lies with the courts to provide redress if the parties adversely affected choose to seek it.