Supreme Court refreshes drive for electoral reforms

Uganda’s 2021 election is rapidly coming into view and so are the factors that will determine how it plays out. It is already clear that this is going to be a unique one in many ways. A couple of weeks ago, the campaign for electoral reforms got a fresh booster shot from the Supreme Court. It was the landmark ruling in favour of the speedy enactment of electoral reforms.

The origin of this historical ruling partly dates back to Uganda’s contested 2016 presidential election. One of the presidential candidates in that election, Mr Amama Mbabazi, unsatisfied with the election results, sought the intervention of the Supreme Court to nullify the elections, contending that the polls were not free and fair.

The Supreme Court did not agree with him though. In the wisdom of court, the electoral anomalies cited in the petition were not substantiated by evidence. Even those that were cited were found not substantive enough to cause a nullification of the entire election. Mr Mbabazi lost the petition. However, unlike in the other previous two electoral petitions of 2001 and 2006 brought by former presidential candidate Kizza Besigye, court did not let go of the matter quite easily.

Guided by the submissions of the amici curiae mostly from Makerere University School of Law, the Justices of the Supreme Court issued 10 recommendations in 2016, which in their wisdom would fundamentally reform the framework for election management in Uganda. The Supreme Court averred that during previous presidential elections petitions, various electoral anomalies had occurred – both in practice and in law and these were partly the root causes of the unending electoral controversies.

The Supreme Court recommended that the time for filing and determination of a presidential election petition be increased from 30 to at least 60 days; the use of oral evidence in addition to affidavit evidence be accepted in court; time for holding a fresh election where the previous elections has been nullified be increased from the currently prescribed 20 days; the use of technology in elections be backed by law; sanctions against any State organ or officer who violates provisions of the law with regard to access to State-owned media be provided; election related law reform be undertaken within two years of the establishment of the new Parliament; laws be enacted to prohibit the giving of donations (during campaign periods) by all candidates including a President, who is also a candidate; laws prohibiting public servants from getting involved in political campaigns be made more explicit; laws be amended to make it permissible for the Attorney General to be made respondent in a presidential election petition where necessary; and that the Attorney General be the authority to follow-up with the Supreme Court’s recommendations.

In fact, the Attorney General was tasked to report back to the court detailing the progress that would have been reached thus far within two years – from the date of the ruling in 2016. Based on the Attorney General’s report, court would make further orders on electoral reforms.

The 2016 specific recommendations of the Supreme Court came against the backdrop of numerous calls for substantive electoral reforms by both state and non-state actors including: Cabinet (2005, 2009 and 2015), 7th, 8th and 9th Parliaments, Electoral Commission, Uganda Law Reform Commission, National Consultative Forum, Uganda Law Society, Inter-Party Organisation for Dialogue, Inter Party Cooperation, Citizens’ Coalition for Electoral Democracy in Uganda, international election observation outfits, among others. Calls for legislative consideration of these reforms had for long been frustrated in one way or another.

The two years within which the Attorney General was ordered to report back to the court and explain progress on implementation of the recommendations passed without him heeding. On March 24, Prof Frederick Ssempebwa, Prof Fredrick Jjuuko and Kitua Cha Katiba (Eastern Africa Centre for Constitutional Development) filed a case before the Supreme Court.
They averred that the Attorney General had not reported back to court and, therefore, he was in contempt of the 2016 Supreme Court order.

In their petition, the applicants wanted the Supreme Court to issue new orders that would further cause electoral reforms. Whereas the court did not find Attorney General in contempt, it nevertheless issued new critical orders that must now be the focus of all stakeholders seeking to change the face of Uganda’s electoral management framework.

Court ordered that the Attorney General in consultation with other organs of the State, ensure that priority is given to the implementation of all the Supreme Court’s electoral reform recommendations. In the same spirit, court ordered that the proposed legislation for implementation of the recommendations be laid before Parliament within a month from the date of the ruling (June 25).

Within the same ruling, court invited the Attorney General to report back on the progress of the proposed legislation within three months from the date of the ruling. And lastly, the Attorney General was summoned to make a final report on the progress of the proposed election legislation within six months (around December).

I find this ruling timely considering the ongoing campaign for electoral reform in the country. It fortifies the efforts of the advocates for progressive political reforms. The judgment also reaffirms the central role of the Judiciary in ensuring credible electoral processes.

While the function of courts in upholding fair play, democracy, law and order has somewhat been doubted (due to some past bizarre decisions), this particular ruling sets a new fair standard of what Ugandans would expect from ‘courts of law’. Courts have the power to promote continuity in governance and prevent actions that can cause stalemate or instability in a country. Sometimes this power has not been properly exploited.

Now that the Supreme Court has again passed on the baton to the Executive arm, it is my hope and possibly the hope of many Ugandans that this time round, government will deliver the relevant electoral reform Bills to Parliament within the stipulated timeframe, to allow for sufficient stakeholder consultations, debate and enactment.

For far-too-long, electoral reforms have been treated like natural disasters. In every election cycle, they are normally a last-minute inconclusive haphazard discussion. This certainly affects the preparation, conduct and quality of elections.

Ugandans have been treated to crumbs of electoral reforms; not even slices! With the order from the highest court in the land, we hope this time Ugandans will be served a loaf of progressive electoral reforms – a prototype electoral law that will satisfy aspirations for free, fair, transparent and credible elections in 2021.
Let me quickly add; beyond the legislative and administrative tiers of reform, Uganda ought to invest robustly and strategically in civic education as a support measure to sustainable good electoral practices.

Civic education must integrate cognitive moral information which speaks to the prominence of the value of democracy, justice, peace alongside social values such as integrity, trust, honesty, patriotism and confidence which have over the years had a far-reaching impact on the nature of elections in Uganda.

About ruling
Within the same ruling, court invited the Attorney General to report back on the progress of the proposed legislation within three months from the date of the ruling. And lastly, the Attorney General was summoned to make a final report on the progress of the proposed election legislation within six months (around December).

The writer is coordinator, Citizens’ Coalition for Electoral Democracy in Uganda