EC chairman Byabakama: Tale of good man, bad job?

Ugandans are consistently at the polls, so much so that electioneering is as good as a habit now. There is always reason to have an election – a new district created opens room for several elective offices; a by-election arising from a dispute in the courts; or death of an office bearer. The work of an Electoral Commission chairperson is an engaging one. It is a round-the-clock operation, nearly 365 days a year.

Mr Simon Mugenyi Byabakama inevitably finds himself right at the centre of attention. For a man who was Court of Appeal judge, the office comes laden with cultural shocks, especially taking over from Dr Badru Kiggundu whom the public called names over his public conduct of the affairs of that office and whose last general election the Supreme Court found wanting on bear minimum basics.

Judges are insulated by the law from unfair scrutiny of their work, thanks to a double and sometimes triple decker appellate system which sieves faults of the men and women in wigs. In effect, a judge can afford to be wrong, out rightly or even suspiciously wrong sometimes and the most the aggrieved party can do is file an appeal or simply rest their case.

Polarising politics
Not the same with chairing an electoral body in a country struggling to get on its democratic feet and bubbling with polarising politics, often time a zero-sum game in which politicians make elections a do-or-die affair. The stakes are high. The scrutiny is intense. Byabakama, who spent the earlier years of his career putting suspected criminals on the defence and later got elevated to the position of judge where he watched men and women in the dock sweat to prove their innocence, is now a man on trial. Will he past the test, whose test, what test?

Senior advocate Peter Walubiri, who has intimately interacted with the work of the Electoral Commission as a lawyer representing clients who have either been sued or are aggrieved with the electoral process, including presidential candidate Dr Kizza Besigye, says Byabakama is now in a position where proper assessment of his person is possible.

He says as deputy director of public prosecutions, Byabakama didn’t only have a fair appreciation of the law but also did his job with utmost integrity but, “he was not tested on personal strength, now he gets calls from the powers that be, including the President and if you test him he is beginning to be wanting, we can now better understand his character”.
“But the rot in the EC is so entrenched that unless one is prepared to resign or stand up to the powers that be, he forfeits the benefits of the job, you may bend here and there.”

The commission was at the receiving end of criticism this week when it went ahead to gazette and pave way for the swearing in of a sole candidate in the Busia LC5 chairperson race even when court had issued a temporary halt to the process pending determination of the merits of his opponents’ case who aren’t happy that they were unfairly knocked out by the EC over a technicality involving a mix up of names.

Political arithmetic
The President, fresh from a debilitating defeat in Rukungiri, Arua, and Jinja municipalities by-elections, even when NRM has performed impressively in this round of by-election compared to the 2011 election aftermath, takes nothing for granted in his political arithmetic.

Did he want the Busia election, in which his government offered a poisoned chalice to one candidate, appointing him to the Uganda Human Rights Commission, to be fixed? If so, did Byabakama and his team play ball, denying the people of Busia and Pallisa sustentative justice on the basis of trivial technicalities? These and more questions are being asked, casting the EC chairman in the spotlight.

On August 28, 2016, Daily Monitor reported that the President had told a women’s conference in Kampala, “I am going to get rid of them [EC]. Why should we suffer with corrupt election officials when NRM has got so much manpower? They should be out. Get out.”

The President’s tongue lashing of the EC in which he sometimes attacks the Opposition, accusing it of conniving with the commission and rigging out his party in elections is not new. Similar misgivings about the commission and whosoever chairs it, are also a page plucked from an old script of Uganda’s politics right from the 1980 election when the Uganda Peoples Congress, Democratic Party and the Uganda Patriotic Movement in equal measure accused those charged with organising the election of unfairness and acting outside the scope of the law.

Perception dilemma
Byabakama is, however, faced with a perception dilemma; with state capture of institutions like the one he leads, forming part of the discourse especially among the Opposition ranks. He also has his own burden to carry arising from his handling, as lead prosecutor, of the 2005 Dr Kizza Besigye rape trial in which he went to the sewers, alongside the police and other State security agencies, picked the rawest mud and threw it at a man who offered himself for president.

Besigye’s defence lawyer David Mpanga submitted then, that the charge against his client was sheer fabrication from the beginning to the last, eloquently moving court to appreciate that it was nurtured and nursed at the State House and taken for implementation to the Criminal Investigations Directorate.

The prosecution case was so discredited and unworthy of any belief so much so that the defence had not seen it fit to put the accused in his stand.

Justice John Bosco Katutsi, who presided over that matter, remarked of Byabakama, “I think the learned deputy DPP [Director of Public Prosecutions] almost had it right when in his submission he said: Prosecution concedes there were a number of short comings in the way investigations were done or conducted in this case.”

“I say almost because this is an understatement. The best way the investigations were conducted and carried out is that it was crude and amateurish and betrays the intentions behind this case.”

In setting free Dr Besigye, the judge who has since retired, borrowed the words of Lord Brougham’s speech in defence of Queen Caroline 300 years ago, “The evidence before this court is 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 judge noted that Byabakama had been strong and characteristically forceful in his submissions in the case.
To be fair to him, a prosecutor’s role is like that of a chef. You present him a tray of rotten eggs expecting an omelette, you get precisely that, an awful omelette and so as prosecutor then, the deputy DPP could only do so much in the face of a shabby job by police although in his evaluation of the evidence on the record he is professionally bound to advise the investigators to either do more to close the gaps or simply keep the file in the drawer till you have a water tight case sufficient to prove your case to the golden standard of beyond reasonable doubt.

That is in the ideal considering reports of his direct involvement, crossing the professional line of duty of the office, in meetings with security officers called to assemble exaggerated and concocted evidence in a political case.

The spirit of the case was so obvious that whoever participated in it, perhaps including the judge, knew in their hearts of hearts that this was one of those dirty tricks politicians play when they have a formidable challenge.

Some critics are yet to come to terms with the reality that a man who hang his professional robes, closed his conscience to the body of professional ethics and morality, eventually heading for the sewers, swimming therein with politicians and security personnel hell bent on discrediting a presidential candidate, can fairly preside over the EC in light of his record.

Because of that history, Byabakama is damned if he does, damned if he doesn’t do a thing.
Mr Walubiri defends him saying, “As deputy DPP he was not the DPP and his advice in that case was not binding so it is not fair to judge him based on that case as it is not fair to say he was apmpointed judge as a reward because if you looked around the DPP’s office then and wanted a judge there was no way you could leave him. It wasn’t a favour to appoint him judge and I think if he had remained judge he would have made a good judge. He served for too short a time for us to asses him as a judge.”

Makerere University history Mwambutsya Ndebesa says, “President Museveni once said those whom he has defeated can as well go and look for land elsewhere and in the last election he said his mission is to obliterate the Opposition. If you have such a strategic goal, you put it in action by appointing a cadre like Byabakama. One would be shocked if he behaved different.”

Funding
Byabakama finds an EC with fairly more funding than his predecessors like Stephen Akabway had, higher staff morale and, as observed by the Supreme Court in previous election petitions, an organisation that has embraced some changes to better organise elections.

In short, the EC has capacity to run a fair electoral contest if it chooses to, the logistical support to do so, and competent staff whose experience and skills have kept improving over the years.
The organisation, compared to the one of 2001, has largely improved with information technology now a central aspect of its operations.

With all these, however, as long as the politics is such that the outcome of electoral processes, as and when the circumstances so dictate, favour a particular ruling group, it matters less, what the chairman does or who he even is.
Mr Walubiri opines that one would have to be a man or woman with a back of steel to stand up to the status quo which is happy to fix processes, including, as Mr Ndebesa says, fixing a chairperson of the commission it is comfortable with to achieve the strategic objectives of those interested in running the State for as long as they still can.