Why amendments before Parliament can’t guarantee best election

On July 25, Attorney General William Byaruhanga tabled five electoral reform Bills on the floor of Parliament.
The Bills included: Presidential Elections (Amendment) Bill No.17, 2019; Parliamentary Elections (Amendment) Bill No.18, 2019; Electoral Commission (Amendment) Bill No. 19, 2019; Political Parties and Organisations (Amendment) Bill No. 20, 2019; and the Local Governments (Amendment) Bill No.21, 2019.

Most of the amendments contained in the Bills are meant to provide for: the time of filing and determination of petitions; the nature of evidence used in an electoral petition; the time for holding fresh elections; the use of technology; equal use of State-owned media; restrictions around donations during election period; regulation of involvement of public officers in political campaigns; the role of the Attorney General in election petitions and timely enactment of relevant electoral legislation, as per the Supreme Court recommendations in the presidential election petition No. 1 of 2016 (Amama Mbabazi Petition), among other aspects.

Earliest
This happens to be the earliest that the country has seen amendments to electoral laws brought before Parliament – prior to a general election. Uganda’s next general election is scheduled for January/February 2021. The electoral reform Bills were tabled approximately a year and half prior to the next general election polling day. It is easy to argue that this was comparatively early in as much as it would be valid to contend that it was technically late.

It was early in the sense that in the past electoral cycles, government has tabled electoral reforms less than six months to an election. At the launch of the strategic plan and the road map for 2020/2021 general elections on December 11, 2018, the Electoral Commission envisaged that amendments to the electoral law would be completed before the end of the first quarter of 2019 – to pave way for the implementation of the roadmap based on a solid legislative framework.

Key exercises in preparation of the next general election have already commenced. For instance, the demarcation of electoral areas and reorganisation of polling stations started on September 2. This important exercise is intended to identify and create electoral areas on one hand, as well as place voters in their rightful polling stations in their respective electoral area. These are quite significant exercises. For a voter, if you do not pay attention to these processes, you risk not knowing where you will be voting from in next election.

While the already ongoing electoral exercises are critical, they would have made better meaning if they were conducted under a firm, well pre-determined legislative framework. Part of the uncertainty brewing around the country’s electoral operations can be explained by the absence of specific aspects in Uganda’s legal regime for election management. Take for instance; there is currently an ongoing exercise to demarcate electoral area, however, there are also amendments in the Local Governments (Amendment) Bill No.21, 2019 that are aimed at reviewing population quotas for electoral areas such as cities, municipalities, divisions etc.

Changing rules of the game
Therefore, good as it may be, the exercise of amending electoral laws that is currently underway is akin to setting or changing rules of a game when the game has already commenced. In fact, that’s why it is generally good practice to amend electoral laws immediately after an election.
Generally speaking, the tabled reforms respond to key aspects of the 2016 Supreme Court recommendations. However, they don’t seem to significantly address the real challenges that afflict Uganda’s election management system.

For example, the Presidential Elections Amendment Bill, just like the Parliamentary Elections Amendment Bill, seeks to provide for restrictions on candidates’ sources of funding for elections. However, the intent of the law should be to regulate rather than restrict candidates’ sources of funding while fostering campaign finance disclosure where applicable.
The Bills before Parliament also don’t provide for the explicit prohibition of the involvement of public officers in partisan political campaigns and neither do they define the special procedures for voting of persons in restricted areas.

Given the country’s past experiences where public officers have time and again been involved in open partisan campaigning, the amendments ought to reflect severe punishments for those public officers who participate in political campaigns.
Similarly, given the lingering doubts around the transparency of voting in restricted areas, it would instil more confidence within the electorate if the procedures for voting in such areas are made explicit and clearly stipulated by the law.

Uncertainty
The proposed amendments that remove the time limit (of 48 hours) within which every returning officer furnishes a presiding officer in the district with voting material prior to an election could easily create uncertainty around when actually polling materials can be distributed.
It is possible that a returning officer could deliver polling materials to presiding officers days, weeks or even months prior to the election day or could convey the voting materials just a couple of minutes to polling.

Either way, this could leave a lot of room for potential manipulation. On one hand, it increases the risk of malpractices like tampering with polling material (in case the material is in the hands of presiding officers for a very long time), and on the other, it creates a possibility of voters being disenfranchised (in the event the material is delivered at the last minute prior to polling).

Therefore, to avoid the 2016 general elections’ experience where polling materials were delivered late to some polling stations in Wakiso and Kampala (and a few other places around the country), it remains important that the law retains a prescription of a specific time (48 hours) within which presiding officers receive polling material.

The amendment that creates an offence for any State-owned media and personnel who do not provide balanced media for all candidates can be read as progressive. However, this proposal could be barking at the wrong tree. Experience shows that when State or private media house denies political candidates (or their agents) media space, it is on ‘orders’ from individuals in government. The law should address itself to the origin of such ‘orders’ rather than placing the burden on the management and staff of a media house.

In fact, within this context, in order to guard against a risk of self-censorship on the part of the journalists employed by media houses, the law should provide for sanctions against the media house themselves and not necessarily the personnel.
While most of the gaps observed in the Bills could be resolved through the ongoing consultations on the amendments, it remains clear that even though the Bills are panel beaten and passed, they would still not adequately guarantee the best election.

Real political and electoral reforms
The amendments before Parliament do not tackle the real political and electoral reforms that would progressively change the electoral management framework of Uganda. Proposals to: reinstate presidential term and age limits; make the appointment process of the Electoral Commission more transparent, streamline the role of security agencies in elections; check the rising electoral violence; regulate the bad influence of money in campaigning; and strengthen the doctrine of separation of powers, don’t seem to be adequately reflected anywhere in the amendments.
While indeed it may be accurate to say that some of these require amending the Constitution, it is also correct to say that many require programmes to be operationalised and mindset change.

The reform of Uganda’s election system is not just about tinkering with Acts of Parliament in anyway. It is about welcoming progressive elements such as the code of conduct for political parties and organisations; it is about objectively critiquing the proposals tabled; it is about properly enforcing the existing (good) laws; it is about conducting a comprehensive legal reform that includes reviewing the Constitution; and most importantly, it is about subjecting Uganda to a surgical moral reform process (as a society) and collectively committing ourselves to live by certain moral standards.
Short of that, what we are going through now may be yet another exercise in fulfilment of a regular pre-election ritual with little or no significant consequences. In fact, the exercise risks being seen as a mere manoeuvre to impose cosmetic changes to the electoral system.

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

About the bills
Most of the amendments contained in the Bills are meant to provide for: the time of filing and determination of petitions; the nature of evidence used in an electoral petition; the time for holding fresh elections; the use of technology; equal use of State-owned media; restrictions around donations during election period; regulation of involvement of public officers in political campaigns; the role of the Attorney General in election petitions and timely enactment of relevant electoral legislation, as per the Supreme Court recommendations in the presidential election petition No. 1 of 2016 (Amama Mbabazi Petition), among other aspects.