MAKERERE UNIVERSITY

SCHOOL OF LAW
COURSE UNIT: ADMINISRATITIVE LAW L1207

GROUP 13
MEMBERS REG. NUMBER
ACIOZIRA DRATELE NANCY 19/U/1796/PS
AKANKWASA JOVIC 20/U/17589
AKANKWATSA VIERA 20/U/0600
ANASO JOLLY JONES 20/U/17587
ANYANGO IMMACULATE 20/U/21260/PS
EMOR BENJAMIN 20/U/5552/PSA
KANU KAYANJA JONATHAN 20/U/10448/PS
MUGISA MATTHEW 20/U/21272/PS
MUHIRE TREVOR 20/U/21248/PS
MUKIZA JOSEPH SAMUEL 20/U/21252/PS
MUTENGU LAUREN 20/U/14339/PS
MWANJA MARVIN 20/U/5586/PSA
NAKIMERA VANESSA 20/U/23898/PSA
NANTONGO CHRISTINE 20/U/11079/PS
NAYIGA TRACY HILDA 20/U/17568

QUESTION: Free and fair elections are the hallmark of any democracy and critical
to the realization of good governance. The Electoral Commission in Uganda has
for long been on the spot light regarding its capacity to deliver the same. As a
student of Administrative Law, what are your views on the same?
Introduction:

According to Jorgen Eiklit and Palle Svensson1, the term free and fair elections is
defined on two planes, that is freedom and fairness, freedom entails the right and
opportunity to choose one thing over the other without coercion while the plane of
fairness entails unbiased application of the rules of elections, equal distribution of
the relevant resources among the competitors and unbiased announcement of the
election results.

This was clearly enunciated in the case of Dr. Kizza Besigye v Museveni and
Anor2 in which the Supreme court asserted what constitutes a free and fair election
as;

“To ensure the elections are free and fair there be should be sufficient time given
for all stages of the election nominations, campaigns, voting and counting of votes.
Candidates should not be deprived of their right to stand for elections and citizens
to vote candidates of their choice through unfair manipulation of the process by
electoral officials. There must be a leveling of the ground so that the incumbents or
government officials and ministers do not have an unfair advantage. The entire
election process should have an atmosphere free of intimidation bribery, violence
coercion or anything intended to subvert the will of the people. The election
procedures should guarantee the secrecy of the ballot, the accuracy of the counting
and announcement of results in a timely manner. Election law and guideline for
those participating in the election should be made and published in good time.
Fairness and transparency should be adhered to in all stages of the electoral
process. The electoral commission must consider and determine election despites
speedily and fairly.”

Article 1(4) of the 1995 Constitution of The Republic of Uganda provides that: The
people shall express their will and consent on who shall govern them and how they
should be governed, through regular, free and fair elections of their representatives
or through referenda. The constitution further confers the right to vote under
Article 59 that every citizen of eighteen years or above has the right to vote and

1
Jorgen Eiklit and Palle Svensson JOURNAL OF LAW, 1997
2
(Election petition No.1 of 2001)
further makes it a duty of the citizen of such age to register as a voter in public
elections and referenda.

The Black’s Law Dictionary defines Democracy as government by the people,

either directly or through representatives3. Objective II (i) of the National
Objectives and Directive Principles of State Policy directs that; The State shall be
based on democratic principles which empower and encourage the active
participation of all citizens at all levels in their own governance.

Good governance according to United Nations is defined as the process of

decision-making and the process by which decisions are implemented (or not
implemented)4and it has its major characteristics as; participatory, consensus
oriented, accountable, transparent, effective and efficient, equitable and inclusive
and follows the rule of law. Thus, from the assessment, it can be inferred that free
and fair elections are key for democracy and good governance to prevail.

THE ELECTORAL COMMISSION:

The Electoral Commission is established by the constitution under Article 60(1)

which provides; 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.

Functions of the Electoral Commission

The constitution further under Article 61 stipulates the functions of the Electoral
Commission to include; ensuring regular, free and fair elections are held, to
organise, conduct and supervise elections and referenda in accordance with this
Constitution, to demarcate constituencies in accordance with the provisions of this
Constitution, to ascertain, publish and declare in writing under its seal the results of
the elections and referenda.

Article 67 mandates The Electoral Commission to ensure that elections are held at
times fixed and notified in advance to the public, candidates access national media,
equal time and space on state owned media to air their views. The laws regulating

3
Black’s Law Dictionary, Bryan A Garner. 8th Edition pg. 1307
4
United Nations Economic and Social Commission for Asia and the Pacific
the use of public resources and institutions during elections are however to be
made by parliament.

Section 12 of The Electoral Commission Act further enunciates the functions of

the electoral commission under part ii of the act.5

Independence of the Electoral Commission

Article 62 of the constitution read together with section 13 of the electoral

commission act provide that the commission shall be independent and shall in the
performance of its functions not be subject to the directions or control of any
person or authority.

The independence of the Electoral Commission can be accessed through

understanding how the commission came into existence, the provision governing
its financing, and how the members of the commission are appointed. The
Electoral Commission is funded by the Consolidated fund which is greatly manned
by the Executive and the appointments are made by the President who participates
in the electoral race thus one could ague that the commission is not independent.

The essay seeks to assess the capacity of the Electoral Commission in Uganda to
deliver free and fair elections that are essential for democracy and realization of
good governance?

The independence of the Electoral Commission is questionable to the deliverance

of free and fair elections. Article 62 of the constitution as well as section 13 of The
Electoral Commission Act, Cap 140 provide that; “the commission shall be
independent and shall, in the performance of its functions, not be subject to the
direction or control of any person or authority.” Its worth noting that an
independent commission is a critical aspect that includes neutrality and impartiality
in the conduct of elections, not being answerable to any organ of the state.
However, Article 60 gives the president the mandate to appoint the chairperson, a
deputy chairperson and five other members of the Electoral Commission which
gives rise to the question of “loyalty”. The appointing president, who is also the
incumbent, has always been a competitor in the presidential election race for the
past 30 or more years. This arises the query as to whether the Electoral

5
Additional powers of the commission and regulation of ballot papers.
Commission officials appointed by president would conduct a free and fair election
for other competitors or will have to play the loyalty card for the re-running
president that appointed them. To ensure the independence of the electoral
commission, the constitution under Article 60(5) provides that a person holding
any of the offices which include member of parliament, local government council,
executive or political and public officer has to relinquish their position in those
offices on appointment which was violated with the appointment of the current
Chairman of Electoral Commission, justice Simon Byabakama thus the case of
Hon. Lukwago Erias and others v Electoral commission and Anor6 in which the
petitioners sought to challenge the appointment of Justice Simon Byabakama as the
Chairperson of the Electoral Commission without relinquishing his office of being
a justice in the court of appeal contrary to Article 60(5) of the constitution.
However much this application failed, it clearly showed that even the leadership of
the electoral commission is to some extent unconstitutional, leaving the electorate
with questions as to whether the electoral commission is capable of delivering free
and fair elections. In a similar case of Male Mabirizi V Attorney General7, where
the applicant sought a declaration that the continued holding of the position of
chairperson E.C by Hon. Mr. justice Simon Byabakama, without relinquishing his
position as justice of the Appeal of the courts of judicature. He also sought that the
office of chairman E.C be declared vacant. In this case judge Sekaana Musa
declined the application on grounds of technicalities. Therefore, it can be argued
that from the above authorities that the Uganda electoral commission is not
independent and as such, it has deprived Ugandans of the principles of good
governance.

The Electoral Commission disenfranchisement of certain groups of people

violating on their right to vote as provided for Under Article 59 of the constitution.
The electoral commission has always failed to put in place arrangements for
persons such as Prisoners and those in Diaspora thus excluding them from
participating in the elections of Uganda despite the fact that there is not express
provision by law that excludes them from participating in elections. In the case of
Kalali Steven v Attorney General and Electoral Commission8 in which the

6
Miscellaneous cause No.441 of 2019
7
Miscellaneous cause 237 of 2019[2020] UGHCCD 3 (21 FEBRUARY 2020)
8
(Miscellaneous cause 35 of 2018) [2020] UGHCCD172.
petitioners argued that Article 59 of the constitution provides for the right to vote
and it does not in any way prohibit prisoners and Ugandans in diaspora from
voting and the electoral commission had not made arrangements for them to vote.
Judge Lydia Mugambe held that every Ugandan of 18 years and above and those in
prison and diaspora have the right to vote as per article 59 of the constitution. In
the case of Nagami V Attorney General,9 the issue was whether the closing of
voter registration in December 2019, amounted to disenfranchisement and thus
infringement of the fundamental rights of voters.

The weakness of the Electoral Commission in the supervision of the electoral

process has the capacity of the electoral commission questionable. Article 61
clause (b) of the constitution gives the commission the mandate to organise,
conduct and supervise elections and referenda. It is worth noting that for an
election to be considered free and fair there must be the right to assemble,
movement, association, information of political parties.10 However taking into
regard the previous elections Uganda had these rights abused under the watch of
the Electoral Commission which is mandated to ensure free and fair election. Since
election campaigns began in November 2020, security forces have clamped down
on opposition members and journalists including Presidential candidates like
Patrick Amuriat of F.D.C, Robert Kyagulanyi of the N.U.P, furthermore Oryem
Nyeko, a African researcher at Human rights watch stated in this Report that “A
democratic Playing Field for free an fair Elections was worryingly absent during
these elections.”11 The elections were highly manned by security forces, arresting
opposition members, military forces deployed in all towns carrying out arrests and
worst of all communication crack down with the cutting of internet connections for
over 3 days which all manifested how unfair the elections were. In the case of
Kizza Besigye v E.C and Museveni12 Justice Bart Katureebe stated that:

“the government address the question of involvement of the military or any armed
groups in elections. No one denies the responsibility of the government to provide
security for the country where the situation warrants it, even during election
period.” He further argued that “in my view the police should be adequately

9
(Civil miscellaneous application 177 of 2020 2021 UGHCCD 27 (30 April 2021
10
Article 29 of the Uganda constitution.
11
Human Rights Watch Report on the 2021 General Elections in Uganda.
12
Election petition no.1 2006
 trained and equipped to handle elections. It may only be supplemented by other
security forces where the situation clearly warrants it. But where there is no clear
cause for it, the army should be kept away from election counters.”

The weakness of the electoral commission in the supervision of the electoral

process as its mandate has further been expressed by the numerous grievances
expressed by competitors at the end of every election. The commission has proved
its self-incompetence, for example in the 2016 elections, the commission accepted
a lot of candidates with dogy qualifications to contest for the highly coveted
member of parliament positions. Its inefficiency has led to the drastic increase in
the number of electoral petitions questioning the qualifications the candidates,
leaving with the judicature courts with a lot of petitions to handle. In the case of
Hon Otada Sam Amooti v Taban Idi Amin and electoral commission, the
petitioners questioned the citizenship, voter registration ambiguities with the name
of the respondent and education qualifications of Taban to participate in the
parliamentary elections contrary to section 4(1) of the Parliamentary Elections Act
thus court setting his election aside. A high number of over 40 NRM member of
parliament which was 9% of the parliament whose elections have been challenged
in courts for electoral malpractice and lack of sufficient qualifications since the
general elections.13 As of the 2021 general elections, over 37 members of
parliament announced by the commission were petitioned challenging the results
of the elections including the president which indicates the incapacity of the
Electoral Commission in handling free and fair elections.

The Electoral Commission has further manifested poor co-ordination with other
agencies to effect a smooth electoral process especially the police and the National
Identification and Registration Authority. Its poor coordination with the police has
resulted into use of violence and force creating unleveled grounds for the
participants in the elections and the poor coordination with NIRA has deprived of
the commission of up-to-date records of legible voters in Uganda since the NIRA
has records of the national deaths and births and age of the citizens of Uganda. Due
to this poor coordination, during the 2021 general elections, numerous complaints
of late registration of voters, non-updated voter’s registers which included dead
people and excluded potential voters thus resulting into many of the legible voters

13
Evolution of Constitutional law, public law and government. Prof. G.W Kanyeihamba.
not appearing in the voter’s registers which resulted into disenfranchisement of
voters contrary to Article 59 and article 61(b) as the role of the commission to
register all the legible voters.

However, the Electoral Commission has proved to be prudent in its delivery of free
and fair elections which has largely contributed to the democracy and good
governance in Uganda today.

Where the Electoral Commission has registered success:

The electoral commission has registered success in the number of voters each
general elections which indicates success in sensitizing voters to participating in
the elections as per its mandate in section 12(1)g of the Electoral commission Act
thus observing an increase in the voter’s participation in the 2021 general elections
where over 18 million Ugandans participated as compared to the 2016 general
elections in which 15 million Ugandans participated.

The commission has further seen success in use of modern technology such use of
electronic voters’ registration and identification to help combat the electoral
malpractices such as one person voting twice and appearing in more than one
register. The electronic registers have also enabled easy tracing of one’s polling
station and the voter’s ability to register online which is crucial for free and fair
elections.

The Electoral Commission has successfully fulfilled its mandate to organise

elections upon expiry of a term as per Article 61(2). The commission has always
organized elections after every 5 years and instances of postponing elections have
been recorded even during the worst times of Covid 19, Uganda held general
elections.

Recommendations:

As administrative law scholars, we would recommend that to ensure complete

independence of the Electoral commission, the appointments of the Electoral
Commission are made by a body that does not participate in the elections since the
president that makes the appointments actively participates in the elections. These
bodies could include, the Judiciary, parliament or any other body so as to effect
free and fair elections.
We would also recommend that the electoral commission expands its coordination
with other institutions whose functions are primary in the organization of elections
such as the NIRA which may provide updated records of eligible Ugandans to
vote, information on the deaths of Ugandans so as to erase them out of voters’
registers and include the legible voters so to rule out complaints of outdated voter’s
registers.

We also recommend increased funding for smooth running of electoral

commission activities such as transportation of election resources, payment of
election supervisors, sensitization of the public among others. Funding in such
crucial areas would solve issues of delay, invalid votes among others.

Deduction:

Basing on this assessment, we could deduce that the capacity of the electoral
commission to deliver free and fair elections which are key for democratic and
good governance is lacking therefore reforms are highly required and
recommended. Reforms such as in terms funding to be sufficient and reforms to
promote the independence the commission.

Bibliography:

Statutes:

1. The 1995 Constitution of the Republic of Uganda

2. The Electoral Commission Act Cap.140
3. The Parliamentary Elections Act, 2005
4. Presidential Elections Act, 2005

Case Law

1. Dr. Kizza Besigye v Museveni and Anor

2. Hon. Lukwago Erias and others v Electoral commission and Anor
3. Kalali Steven v Attorney General and Electoral Commission14 in which the
4. Kizza Besigye v E.C and Museveni
5. Hon Otada Sam Amooti v Taban Idi Amin and electoral commission

14
(Miscellaneous cause 35 of 2018) [2020] UGHCCD172.
Reports:

1. The Human Rights Watch Report, 2021

2. The Election Observer Mission Report, 2021