It is estimated that 1 million voters who had turned 18 on December 23 when you closed voter registration or will be of same age by December 31, 2020, will miss voting in 2021 general elections. You have disagreed with the numbers.
Justice Byabakama: We have heard about this figure. The EC doesn’t act on the basis of disfranchising anybody eligible from participating in an election. If anything, our desire is that every eligible voter be given an opportunity to participate in an election.
That is why whereas there is continuous registration of voters as required by the law, when we are watching an electoral cycle, we put a period known as update period whose purpose is to enable those who don’t exist in the national voter register or who are coming up as first time voters who have attained 18 years and are citizens, to be able to apply to become voters.
As a result, we have 17,782,594 registered voters for 2021 elections. In 2016, we had 15, 276, 685 registered voters. Which means between 2016 and present, there has been an increase of 2.5 million voters.
This is not the first time we have heard about the figure [the extra one million unregistered voters]. We have heard about it before from various stakeholders. As the Commission, we are asking, ‘where is this figure coming from? Can any person who is highlighting the numbers come forward and tell us where it is coming from?’
Because we have been to the National Identification and Registration Authority (Nira). Remember the registered voters’ number is derived from the data Nira gathers or collects arising from their registration of citizens and those who express willingness to vote.
We have looked at that data, we are in the process of harmonising all those Ugandans who have been confirmed as citizens. Remember Nira registers those Ugandans who are 16 years and above. We asked them that we want statistics of those you have registered who will be turning 18 from the time of cutoff [of registration] on December 24 up to December 31, 2020. We are disfranchising about 1 million voters?
Does NIRA have that figure in their data that between December 24 and December 31, 2020, the people who will have turned 18 and, therefore, are eligible to vote will be 1 million? Nobody has come out to say this figure is authenticated from this source.
My Lord, the estimates were on Uganda Bureau of Statistics (Ubos) projection report of 2020 where they indicate that about 4.98 million people were aged between 15 and 19. We also considered your (EC) earlier projection of 19.4 million voters for the 2021 general elections. Where are about 2 million more voters you had projected? Which statistics did you use for your projection?
Justice Byabakama: We had projected 19.4 million. But voting is a voluntary process. We had projected that we may have an additional 4 million voters, all factors remaining constant; that all those eligible voters will register. You may have 5 million eligible voters but how many of those are willing to become voters?
How do you express that willingness? By applying that I want to get registered as a voter.
Whereas registration for citizens is mandatory, the right to vote is voluntary. There may be more people going to Nira to register because endanga muntu (national identity card) is a very critical document now.
But when it comes to whether you want to vote and where, you are at liberty to leave that place blank. That doesn’t mean Nira will not process your application for citizenship and issue you the ID.
But when EC goes to access Nira data and establish who is a Ugandan citizen registered and willing to vote, we shall leave you out.
The law says a person who qualifies as a voter is one who is a citizen of 18 years and above at the time of registration. Article 59 of the Constitution says every citizen of Uganda of 18 years of age and above has a right to vote. Once I am 18, I have a right to vote. That is not negotiable. The question is how do you implement, or actualise your right to vote?
Then, we come to the Electoral Commission act; Section 19, which says: “Any person who is a citizen and of 18 years shall apply to be registered as a voter. That is how we actualise your right in the Constitution.”
But what is being formed now, is that the people who are being left out are those who will turn 18 by the time of polling. We are being told we are leaving out people who are turning 18 at the time of polling and we should put them in the register. But the law is saying the only people we can put on the register are the ones that apply at the time of registration.
If we say, ‘let us capture all those people who will turn 18 between December 24, 2019 and December 31, 2020, someone is going to accuse us of putting in the register persons who have not yet turned 18.
But people are saying you have blocked them and since voter registration is a continuous process…
Justice Byabakama: Many people focus on the events on polling day when they will come and cast their vote. But for the Commission to get to polling day and have the materials delivered and distributed, we must go through a series of preparatory meetings that are so involving, complex and time bound. Some of those activities are engrained within the law governing elections.
For example, the period we call updating national register and the current exercise of display of the national voters register are laid down in the law with specific timelines. If you skip any one of those, you are bound to be taken on by any stakeholder that you have not complied with the law.
People are looking at the 2021 General Election. We are saying the elections are starting in April. The national elections start in April this year with special interest groups (SIGs). They include the youth, elderly persons and persons with disabilities.
Why start them early? Because according to the law governing those groups, theirs start from village level, parish, sub-country, and district and then link up to the national level of parliamentary, which will take place in 2021. What does that have to do with the national register?
Although these elections are for these groups and being conducted in their electoral colleges, the primary document that qualifies you to be a voter or candidate in the primary youth election, elderly or disability is the national voter register.
If you are not there, even if both arms and eyes are not there and everyone can see you are a person of disability, we shall ask if you are registered in the national voters register. If you are not, despite that you qualify with the other things, you cannot participate.
If those elections are starting in April and yet you have not completed your register because you continue to register people, what does this mean?
The law requires us to give a register to the candidates at the time of nomination. The law indicates that there must be an end to the registration of voters to enable these other processes to take place.
Section 19 A of the EC Act says when updating the voters register, the Commission shall update it to a date appointed by a statutory instrument as the date on which the updating shall end.
When you are updating the register, you don’t continue updating, you must create a cutoff point and inform the citizens by putting it in the gazette.
What was the rationale?
Justice Byabakama: What were the makers of this law considering? They recognise the need to have a credible, known, complete and ascertainable register. It is the cornerstone of a credible free and fair election.
If they ask the chairman of the EC what register are we talking about? And I say so far it is 17 million but it is still growing; how do we know that it is not a tactic to add in people at the last minute when everybody is concentrating on elections?
That is why the makers of the law found it imperative that there must be a cutoff which everybody knows so that every stakeholder knows.
Registration of voters is over. What is following now is display. Do you know how much the display of register costs? Billions of shillings.
Justice Byabakama: For this general election, display is at every polling station. There are 34, 344 polling stations. Those are display officers. We are also going to display voters register for SIGs at village level because their election starts at village level. There are 68, 000 villages in Uganda today.
The display at polling stations is going to last 21 days. Each day, we pay the display officer Shs10,000. There is one officer at every station. That means Shs7.2 billion is spent on display at district level. Now display at villages for SIGs for 10 days will cost Shs6.8 billion.
Why did the legislators of this law find it necessary that government incurs this cost for just displaying the register?
Display of register is not for registering new voters. It is for people to go and verify and confirm that your name is in the register and at a station you want to go and vote from. It is to verify the correct names against the pictures, verify those who died but are still on register
We take note of all those concerns, rejections and submit them to the parish tribunal process. It is the one that gives an opportunity for all those who have been named to have died or said to have relocated and no longer voters of that area to confirm and we remove. How about those who registered but at display they were not captured?
If you have evidence that you registered, those are the things we are addressing. Do you see the dangers of registering people up to the end?
Do you see a gap in the Constitution? As you realise, the Constitution, which allows continuous registration, is indicating updates and display with timelines.
Justice Byabakama: It is not the EC to pronounce itself on that. There are recognised institutions like the Constitutional Court to say, we have looked at this provision which says the Commission should create a cutoff date of registering voters and we find it inconsistent with Article 59 of the Constitution and, therefore, we declare this law null and void.
The Commission cannot bestow on itself the jurisdiction to determine which law is applicable and which is not applicable.
But do you identify those contradictions?
To me, I don’t. We must not purely be legalistic about a register. We must be realistic. We must be practical. You cannot hold a credible election if you don’t have an ascertainable, credible known register. It is not a question of legalism. It is a question of practical reality and it is a question of what are you aiming at. Are you aiming at an election which everybody is satisfied about in the process pertaining that election?
Look at the question people have been raising. The question of transmission is in a mystery. Then the commissioners come up and say we are going to put this in place so that as results are being declared, everybody is seeing. It is transparency.
If you are going to have a register that continues to grow, how many polling stations are you going to gazette? The law says you must gazette polling stations so that everybody knows them.
The candidates have to plan and budget for agents they will need for these number of stations. But if you don’t know how many polling stations to budget for, how will you plan?
Elections are very expensive. We pay those polling officials. We start budgeting the election three years before. That is why we call it a phased budgeting process. If the treasury is to consider EC budget in one financial year, I can assure you, there will be a crisis. Other activities will not take place.
What will you tell Ministry of Finance? That we are not sure of the budget, give us what you have. Is that budgeting?
How many ballot papers do you want because the ballot papers you print are premised on the size of the national voters register? Will you print ballot papers in two days? Not at all. It is a process. How are you going to budget for, how many papers are you going to buy? What will you tell people? That you don’t know how many ballot papers you have because the voters register is going on?
Is it economically viable? The transparency and sanctity of election does augur well for a transparent credible election or else you are opening up avenues for all sorts of insinuations, accusations and suspicions.
Remember, the EC has to avail candidates a copy of the register. Which register are we going to give if voters are going to register up to December 31, 2020? You think a register is something simple? Getting data from the field, going through it…? And the law says before you can roll out this register as the final one, you must display it.
Assuming we open the register until September 2020, if you are going to use it for 2021, and have not displayed, someone is going to go to court. They will cancel that register and the outcome of that election.
Because Section 25 says before any general election is held, the Commission shall by notice in the gazette appoint a period of not less than 21 days during which a copy of the voters for each parish or ward in your country shall be displayed for public scrutiny. This is the period which is taking place now. From February 19 to March. To us, this is a commander.
On updating voters’ register
In addition to the 21 days, the commission shall allow a period of 10 days during which any objections and complaints in relation to the names recommended by the tribunal to be included or deleted from the voters register shall be raised. We are talking about 31 days.
If we say we can allow new voters to get in the register we end in September. Then you have 31 days which you must have. That is already taking you to October. The law says you must avail the copy of the register to the candidates.
The candidates are being nominated under the new adjustment of October for presidential candidates, but you are still working on the register.
During this display and issues are raised, you come back here to correct them. The final register must be printed. Preparing for an election is not like preparing posho and beans. It is a very cumbersome process. People spend nights in warehouses packing. They work 24 hours for two months. Team no sleep. You find the chairman even forgetting his home.
If you are going to have a process that is not certain, you are creating chaos.
Remember an election can be a precursor to instability or stability. And one of the things that bring about the undesirable is where the process is marred by uncertainties. Not to talk of the public resources that will have been sunk into the process.
We need this register by April, for first round of national elections. SIGs are not in isolation. It is the chain that rotates.
If we don’t do it now-- disaster. If we skip those processes-- disaster. Ugandans have become so conscious of their rights. The citizen is going to courts of law.
The outcome will be questionable.
The second part of the interview continues tomorrow