Africa-Press – Uganda. The fate of Electoral Commission chairman, Justice Simon Byabakama, and five other commissioners eligible for reappointment, is uncertain a month to the lapse of their current tenure.
Except for Ms Justine Ahabwe, who left office last month following the expiry of her second term, the other six commissioners began serving on January 17, 2017, meaning their seven-year mandate ends in roughly five weeks.
These include chairperson Byabakama, his deputy Hajat Aisha Lubega and other first-time commissioners; Mr Peter Emorut, Mr Stephen Tashobya, Ms Nathaline Etomaru and Hajj Mustapha Ssebagala.
Article 60 of the Constitution which establishes the EC provides a seven-year tenure for the commissioners, renewable only once.
Clause 4 of the Article specifically obligates the President, who is the appointing authority, to renew the mandate of an incumbent EC commissioner three months before the end of their running term.
This publication established that President Museveni, as of yesterday, had not renewed the appointment of any of the six commissioners eligible for reappointment, leaving them, the Commission and Ugandans second-guessing their future in their jobs.
“Very soon, if they aren’t reappointed in time, the Commission shall be without commissioners [and its activities paralysed],” an insider told this publication on condition of anonymity.
Framers of the 1995 Constitution, as amended, in Article 60(4) used the imperative word “shall” regarding the time for renewal of an incumbent commissioner’s term, which Shadow Attorney General Wilfred Niwagaba said meant compliance by the President, as lead guarantor of the supreme law, is obligatory, not discretionary, in a governance with fidelity to constitutionalism and rule of law.
In interviews for this article, State House, the Ministry of Justice and Constitutional Affairs, under which the EC is domiciled, and the Attorney General Kiryowa Kiwanuka separately said the law will be followed.
“Any information in that regard (reappointments or new appointments of EC commissioners) will be shared as and when it becomes available,” said Mr Sandor Walusimbi, the senior presidential press secretary.
Mr Nobert Mao, the Justice and Constitutional Affairs minister, was cryptic in his response to our inquiries.
“Appointments will be made in accordance with the law … Article 60 of the Constitution is very clear,” he said without elaboration.
Attorney General Kiryowa Kiwanuka, the principal legal advisor to the government, shared a similar view, saying the ministry in charge is aware.
The commissioners oversee the activities by the management of the Commission whose charge under the Constitution, among others, includes organising, conducting and supervising elections and referenda in accordance with the law of the land.
One such poll, which is months behind schedule due to delayed financing by the government, is that for Local Council and Women Council leaders, the former being the lowest administrative unit and citizens’ first call of interface with government and its programmes.
Following the extension of the tenure of the current LC I officials by six months through a statutory instrument, the elections of new office bearers is expected before January 10, 2024, but the process has remained wet-winged even after the EC got the money it asked to bankroll the vote.
In addition, the Commission is in the early stages of implementing its electoral roadmap, with the planned 2026 elections a key deliverable in the strategy, meaning delayed reappointments of the incumbent or naming of new commissioners will stymie progress.
Despite the unexplained shortfalls, Mr Paul Bukenya, the commission spokesperson, yesterday sought to allay public fears with assurances that all is well at the electoral body.
“There is a commission in place and it is doing its work. There is no gap. The law is very clear on the tenure … and it has not expired. In case of that time [when it expires], the law is very clear on appointments and reappointments,” he said.
Mr Bukenya did not directly apply himself to the constitutional directive that the tenure of incumbent commissioners “shall” be renewed three months before a current one expires.
Nonetheless, he added, “legally, the quorum [for EC to function] is five commissioners; so, we have quorum and are working well”.
The President under the law appoints EC commissioners, who constitute the institution’s top executives, and each member is individually vetted and approved by Parliament’s Appointments Committee chaired by the Speaker and to which the Leader of Opposition in Parliament is a member.
This manner of picking EC Commissioners is what the Opposition has for decades demanded, among a raft of other electoral reforms, to be changed.
In December 2016, the dissenters led by then Leader of Opposition in Parliament Winnie Kiiza, and joined by Democratic Party (DP) leader Mao who at the time was out of Cabinet, petitioned then Speaker Rebecca Kadaga to halt vetting and approval of the Justice Byabakama team, reasoning that their impartiality and independence were in doubt due to the procedure of their appointment.
They were unsuccessful, and Mr Mao was later to run for President, his second attempt, garnering 57,682 (0.56 percent) votes nationwide.
MoU
However, his political fortunes changed with his appointment to Cabinet in August 2022 after his DP signed a Memorandum of Understanding with the ruling NRM.
Political watchers, among them former Ethics minister Miria Matembe, characterised the docket of Justice and Constitutional Affairs handed to Mr Mao a poisoned chalice, with renewed questions about independence of the EC after Mao’s promised constitutional amendments failed to get the legs to walk.
Shadow Attorney General Niwagaba said an independent entity such as the Judicial Service Commission or the Public Service Commission should appoint EC commissioners on merit and not gender, regional or religious balance considerations.
“But our proposals did not take off,” he added, summarising the Opposition’s frustration.
Ms Charity Ahimbisibwe, the executive director at Electoral Laws and Governance Institute, argued that an independently-constituted Commission, with participation of political parties and ordinary citizens, would restore stakeholders’ trust in the electioneering process.
“If you do not have people that are objective, and independent that have gone through a process acceptable to everyone, then the thought that the one who appoints them will influence how they run processes, will remain rife,” she said.
Despite such misgivings, ex-EC Commissioner Ahabwe told this newspaper last evening that whoever will be named to the Commission should “just to do what is right” because elections are emotive, yet no institution in the country pre-trains anyone to run national elections.
She said her appointment, just like that of colleagues, was greeted with doubts but that they delivered, including during the testing Covid-19 pandemic disruption period that forced other countries to defer elections altogether.
“Issues of elections are so emotive and it is a battle everyone goes to with a hope of winning. And people behave differently when they do not get the expected results,” Ms Ahabwe said.
She added: “I thank God that he has walked us through. The pandemic issue was trying; the first of its kind where we had to think seriously, but we managed to conduct the election. That is a record no one can contest …”
The Justice Byabakama team that organised the 2021 ballot of “digital campaigns” was excoriated by critics for imposing limitations, among them banned mass rallies in favour of town-hall style consultations by presidential candidates, which Opposition actors said impeded their countryside reach.
Accusations that the then first-time presidential candidate Robert Kyagulanyi, alias Bobi Wine, breached the rally rule led to his arrest in the eastern Luuka District in November 2020, sparking demonstrations in Kampala and surrounding towns.
The army and police poured armed personnel to quell the civil disturbances and, as admitted by President Museveni who is the commander-in-chief of the UPDF, security forces shot dead up to 54 of the “rioters and demonstrators”.
The calls by affected families, Opposition leaders, rights groups and foreign diplomats for accountability and justice has been muffled by insistence by sections of the government that majority of the victims were “rioters … terrorists”.
Only two soldiers attached to the UPDF 1st Division headquarters in Kakiri, Wakiso District, have been convicted and imprisoned over the shootings and President Museveni’s directive for innocent victims of the November protests to be compensated has partially been implemented, according to the Attorney General, whose office has not made particulars of the beneficiaries public.
The Bobi Wine camp at the time accused the EC and law enforcement of playing double standards by, according to him, allowing supporters of the ruling National Resistance Movement (NRM) party flag bearer, Yoweri Museveni, to mass up on campaign trails undisturbed.
In the end, the EC declared Mr Museveni the winner after he polled 6 million votes (58.4 percent), leaving Bobi Wine who bagged 3.6m votes (35 percent) in the second position in a crowded campaign that drew 11 candidates.
The popstar-turned-politician rejected the vote outcome as made up and petitioned the Supreme Court to overturn Mr Museveni’s win, his sixth successive electoral victory, but he withdrew the case midway on claims that the judges were biased.
What the law says
Article 60 of the Constitution provides that:
(1) There shall be an Electoral Commission which shall consist of a chairperson, a deputy chairperson and five other members appointed by the President with the approval of Parliament.
(3) The members of the Commission shall hold office for seven years, and their appointment may be renewed for one more term only.
(4) If the appointment of a member of the Commission is being renewed, the renewal shall be done at least three months before the expiry of the first term.
Functions of EC
The Electoral Commission shall have the following functions— (a) to ensure that regular, free and fair elections are held; (b) to organise, conduct and supervise elections and referenda in accordance with this Constitution; (c) to demarcate constituencies in accordance with the provisions of this Constitution; (d) to ascertain, publish and declare in writing under its seal the results of the elections and referenda; (e) to compile, maintain, revise and update the voters register; (f) to hear and determine election complaints arising before and during polling; (g) to formulate and implement civic educational programmes relating to elections; and (h) to perform such other functions as may be prescribed by Parliament by law.
Extracted from Article 61 of the Constitution
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