Scholars: ‘Scientific election’ ground for constitutional crisis

Monday July 27 2020
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People line up to cast their vote during the 2016 General Election. Experts have warned that virtual campaigns may not result to a free and fair election in a country with a history of sham election outcomes. PHOTO/ABUBAKER LUBOWA

The Electoral Commission (EC) recently revealed that a ‘hybrid concept”— the fusion of virtual and traditional processes is the most viable option to conduct the 2021 General Election.

But can virtual campaigns be the touchstone of a free and fair election in a country with a history of sham election outcomes and could the deck be stacked against the Opposition?

Justice and Constitutional Affairs minister Ephraim Kamuntu only managed a suppressed grin when one of the MPs on the Legal and Parliamentary Affairs Committee reminded him that it was the flawed outcome of elections that resulted into the overthrow of the Uganda Peoples Congress (UPC) regime he served as a boardroom honcho then.

Mr Kamuntu appeared before the committee on July 1 together with Attorney General William Byaruhanga and the EC chairperson, Justice Simon Byabakama. They submitted a revised roadmap for next year’s polls.

During the three-hour interface, the Members of Parliament and government team discussed electoral-related laws, the processes leading to the elections in “such abnormal times” and the alternative of government declaring a state of emergency and postponing the polls scheduled for next February, an option which government has rejected.

But can the hybrid campaign be the touchstone of a free and fair election? This comes on the heels of a petition filed in the High Court by Joseph Kabuleta and Dean Emmanuel Kisembo challenging the legality of such an election.
History has an uncanny way of repeating itself. The 1980s elections that forced President Museveni to wage a rebellion against the Obote II government has continued to be a key reference point in Uganda’s history peppered by anarchy and coups.
Mr Museveni, then a young-run-of-the mill Marxist-leaning candidate, preached fire and brimstone at the political pulpit. He promised to pick up arms and wage a rebellion if elections were rigged.
Whereas foreign observers endorsed the election as free and fair, its efficacy was contested as widespread malpractice were registered against Democratic Party candidates in favour of UPC candidates across the country.

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Since he captured power in 1986, the victories of President Museveni have been challenged in the Supreme Court. While two victories have been upheld by a narrow majority of the Coram of Justices, these decisions have elicited ambivalence from constitutional law jurists. There is contestation among the exponents of the narrow-view of judicial restraint anchored on the substantiality test against the progressive advocates of judicial activism.

During the 2006 presidential petition, all seven justices of the Supreme Court unanimously agreed with the petitioner, Dr Kizza Besigye, that the Constitution and various electoral laws had been flouted.

For instance, Justice Joseph Mulenga, who upheld the president’s victory in the 2006 presidential petition postulated that, “the result of the election” in the context of the law means the votes secured by each candidate. “The petitioner must show that the winning candidate wrongly secured a substantial number of votes and the unsuccessful candidate wrongfully lost a substantial number of votes,” read his judgment.

The Supreme Court’s majority decision to some constitutional law jurists had with their judicial seal shut the window for presidential petitions as an avenue to legitimately contest the polls.

In his 2006 verdict, Justice George Kanyeihamba believed that the Supreme Court abdicated its judicial duty by upholding the president’s victory in a 4-3 majority vote.

He argued that the court should have taken an industrial and wider interpretation that favours judicial activism.
“Judges have the responsibility to pronounce themselves on a disputed matter guided only by the Constitution and laws of Uganda. In my view, to prove that the results of a presidential election were affected in a substantial manner, all that a petitioner needs to show is that both the Constitution and the laws of the land were substantially violated,” he argued.

Yet fears are abound that the EC is laying fertile grounds for legal contest[s] with its “hybrid concept” roadmap for next year’s polls in view of the public health measures put in place to contain the spread of the Covid-19 pandemic.
Hardly any electoral reforms recommended by the Supreme Court in the 2016 election petition have been tabled. The electoral reform recommendations have been carried forward after Justices of the Supreme Court in the 2006 presidential petition had the jurisprudential crystal ball to predict the future.

The Supreme Court in 2016 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, among others.

Justice Byabakama speaking at a consultative forum at Protea Hotel in Kampala on July 16 said the hybrid concept, the fusion of “scientific and traditional processes”, is not entirely new but rather a readjustment of timelines and it is the “most plausible idea.”

It is not clear yet where he picked the ‘scientific election’ phrase, a colloquial term, which is not part of the electoral laws nomenclature.

He argued that under the restrictive climate, political candidates would be allowed to go for their nominations convoyed by small groups of supporters.

“Campaigns will be largely conducted on digital/virtual platforms including social media such as Facebook, Twitter and traditional mediums such as radios and televisions, and voting will be held under the adherence to the Covid-19 Standard Operating Procedures such as washing of hands, social distancing, and wearing of masks,” he said.

“Whereas we are grappling with Covid-19 and we have had to adjust some of the activities in our roadmap, there is one immovable aspect…that is Article 61 (2) which sets the timeline (within the first 30 days of the last 120 days before the expiration of the current term of the president) within which EC must conduct elections,” Justice Byabakama said.

Risky business
Neighbouring countries such as Burundi and Malawi have held elections during the pandemic but are now dealing with a surge in Covid-19 cases despite public health measures they enforced.

The chief executive officer of Malawi’s EC, Mr Sam Alfandika, shared with Daily Monitor their experience in the just concluded election. However, the circumstances of the Malawi election were different after court nullified the victory of the incumbent, Mr Peter Mutharika.

Largely the presidential candidates had carried out conventional campaigns before the pandemic. “Initially, there was respect for the health guidelines, but as the election fever caught on, all actors started flouting them,” Mr Alfandika said in an interview via teleconferencing from Blantyre, Malawi’s second largest city.

“Now with our Covid-19 cases increasing—now in 3,000s, it is not surprising that the deaths are people who were close to the process. The cases could actually be higher just that we have challenges with testing,” he added.

In Uganda, a number of ministers including Ms Jane Ruth Aceng, the Health minister, have flouted social distancing rules during meetings with their supporters. Legal scholars have argued that the hybrid election can only be legally secured through the declaration of a state of emergency.

Article 110 of the Constitution, provides that the president in consultation with Cabinet may declare a state of emergency if the country is threatened by war or external aggression; if the security or economic life of the country or part is threatened by internal insurgency or natural disaster.

But the clamour to conduct a virtual campaign and scientific election; the first of its kind in Uganda, legal scholars have argued puts the country on a dangerous constitutional path.

Former Principal Judge and chairperson of The Elders Forum, Justice James Ogoola, told the June 16 consultative meeting that elections are premised on, among others, free and fair principles, and unrestrained interface between candidates and electorates.

“What then do we do with the fundamental rights of the electorates? EC has come up with a raft of dos and don’ts, wonderful! They have gone to extra ordinary length but one wonders why go at length to do the normal in the abnormal?” Justice Ogoola said.

“We are dodging everything and what we are left with are minefields everywhere,” he added.
Makerere University law don Busingye Kabumba says the EC’s hybrid concept is merely remedial to its earlier roadmap that was “not fit for purpose and is unconstitutional.” In In Kabumba’s view, “it is an attempt to try to reach some sort of harmonious position on health guidelines and a modicum of interaction of electorates and candidates.”

Yet still, he told Daily Monitor in an interview on Thursday that it still comes up short and has ramifications for the country’s democratic credentials.

In a paper title: “The 1995 Constitution and Covid-19” published earlier in April, Dr Kabumba opined that with the pandemic bringing life as we know it to a grinding halt, the logical thing is/was for government to declare a state of emergency because such a (health) emergency was envisaged by the framers of Constitution.

“And now life is not normal, but rather the state has opted for public health guidelines and what we are experiencing is a crisis of monumental proportions…it goes to the heart of life. The problem here is in trying to side step constitutional provisions, akin to one eating their cake and at the same time wanting to have it; you get into problems where we are,” he said.

Mr Byaruhanga has told Parliament that a state of emergency is not justified as government is ably managing the Covid-19 pandemic.

The Speaker of Parliament, Ms Rebecca Kadaga, told Parliament in mid-April that she and the [former Chief Justice Bart Katureebe] had proposed to the President to declare a state of emergency but the objections came from one of the ministers, who told the President that it is not necessary and that we can operate under the Public Health Act.”

Nonetheless, calls are abound for Article 110 (1) of the Constitution to be triggered— a state of emergency declared during which Parliament would extend its term for another six months, although there is no provision of extension of the President’s term—on grounds that a normal election as prescribed in the Constitution and basing on EC’s roadmap under the circumstances, is impossible.

It has also been argued in some quarters that such a move reallocates the President’s powers to Parliament and places the Speaker in the coveted seat of the presidency until a new leader has been [re]elected, in this case which puts the incumbent in a disadvantaged position and perhaps explains government’s disinclination to the idea.

Dr Kabumba revealed that without a state of emergency, “it becomes difficult to have a conversation on the crisis on public health through the lenses of EC. If they had done that perhaps we would be having a different conversation.”

He said: “It is like the house being on fire and the occupants are discussing sitting arrangements. Government has been caught with its pants down in its dishonesty—refusing to declare a state of emergency and yet wanting to hold normal elections in a state of abnormality.”

Higher stakes
While the EC has so far remained unwavering with its plan, citing its mandate drawn from, among others section 50(1) of the Electoral Commission Act, which grants the commission special powers to issue particular instructions to meet unforeseen circumstances, questions linger on the how campaigns themselves will be conducted effectively through mainstream media and cyberspace.

Opposition MPs have argued that the EC is preoccupied with holding “regular” polls in total disregard of whether the process itself is fair and transparent.

Specific concerns have been raised about the reach of the media platforms gazetted for political campaigns.
A May 2020 Uganda Communications Commission (UCC) market performance report details that telephone penetration in the country stood at 66 per cent, active user of smart phones stood at 6.6 million against telephone subscription at more than 26.6 million, feature phones with basic data capabilities stood at 17.2 million, 27.1 million Ugandans are registered on mobile money with 15.6 million accounts being active, while Internet penetration stood at 40.4 per cent.

The 2014 census found radio to be the main source of information at 55 per cent, followed by word of mouth at 19.6 per cent, television at 7.2 per cent, internet at 7.3 per cent, and print media at 2.1 per cent. NRM-leaning politicians own most FM radios in Uganda.

According to Mr Edrine Wanyama, a digital rights expert at the ICT Policy for East and Southern Africa, an internet research and analysis think-tank, digital campaigns in Uganda are impractical because the reach of radio medium still remains low, added to other structural handicaps such as the high costs of digital mediums, electricity costs, and high illiteracy levels.

“There is an issue of affordability. The general picture from statistics shows the population generally unable/poor; the introduction of over-the-top (OTT) Tax of Shs200 per day saw a drop in Internet users from 47.4 per cent (18.5 million Internet users) in June 2018 to 35 per cent (13.5 million users) in September 2018, and Uganda is among the countries with highest Internet costs in the region,” Mr Wanyama argued.

Some worries
There is also concern of government’s pervasive control over digital platforms, particularly through the telecom companies as witnessed during the 2016 elections when Internet was shut down and mobile money services disabled for at least 18 hours over security concerns.

Technology has become a common and often indispensable part of our elections. Yet each digital development also brings dangers such as the hacking of emails, the spread of misinformation through bots and interference with voter databases.
If not considered and managed, these can threaten public confidence in the integrity and credibility of democratic processes.

In 2013, a UK-based data analysis firm Cambridge Analytica, was accused of manipulating data to favour Uhuru Kenyatta in the 2013 and 2017 election.

Three years after shutting down the Internet, government slapped the OTT tax on grounds of widening the tax base, although it has not translated into the desired goal. That perhaps leaves only traditional mediums such as radios and televisions.

Dr Emily Maracho, a journalism lecturer at Uganda Christian University, argues that the virtual campaigns could favour those who are financially stable.

“If you are looking at paying for the campaigns then those who can pay will take the day, on this the NRM presidential candidate definitely has leverage over others. If the prices of appearing on such mediums are not fixed he won’t find a problem paying any fees but what about other candidates?” he asked.

“Also note that as long as the principles of news remain the same, there cannot be fair coverage. Media is interested in who is the news maker/s and what are they saying. So if you say campaigns are digital there has to be a set of regulations to enforce fair coverage,” Dr Maracho said.

“Then there is the undefined ownership of media; we have a multiplicity of media but not diversity. Unless parliament enacts a law prescribing the conduct for digital elections and for which media will be held liable, for the most part it’s wasting time; it disadvantages many and empowers a few,” added.

The Covid-19 pandemic poses a threat to the health of citizens and it’s justified that conventional means of campaigning such as large public gatherings be suspended but this must be conducted under a proper legal framework to avoid a constitutional crisis.

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