Electoral Law Reforms in Uganda as Country Prepares for 2021 Elections

Electoral Law Reforms in Uganda:Gearing for Age-limitless and Scientific Post-COVID-19 Elections

Introduction

In what is now an occurrence every five years, Parliament of Uganda passed amendments to electoral laws. This occurrence, at the close of each five-year cycle of government, has been on-going since 2005, with reforms to laws regulating the elections management body (electoral commission), political parties and organizations, presidential,parliamentary, and local government elections. Originally gazetted as separate bills on July 24, 2019, the Parliament on July 15, 2020 passed the Electoral Commission (Amendment) Act 2020; the Political Parties and Organizations(Amendment) Act 2020; the Parliamentary Elections (Amendment) Act 2020; and the Presidential Elections (Amendment) Act 2020. While they seem like the routine run-of-the-mill amendments to electoral laws as the country gears for the 2021 general elections, the amendments assume an added significance in the wake of what has transpired since the last elections in 2016—the presidential election petition (and the recommendations by the Supreme Court on electoral reforms), the removal of the age-limit to candidates in elections and, in the recent, a COVID-19 pandemic and nascent political discourse over“scientific campaigns”. In effect, the imprints of the decision of the Supreme Court in Amama Mbabazi v. Yoweri Kaguta Museveni & Another, Election Petition No 1/2016 and the Constitution (Amendment) Act 2018 are evident in the electoral law amendments.

This Legal Alert highlights key aspects of the amendments in the electoral laws.

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Use of Technology In Elections

The amendments to the electoral laws provide for the adoption and use of technology in the management of elections. As regards the elections management body, there are new sub-sections (1a)-(1d) to section 12 of the Electoral Commission Act Cap 140. The Electoral Commission (Amendment) Act 2020 provides for—

(a) adoption by the Commission, in exercise of its powers, of technology in the management of elections (s. 12(1a)).

(b) putting in place by the Commission of electronic display system for the public at every tallying centre (s. 12(1b)).

(c) regulations, by way of statutory instrument, to prescribe manner of use of technology in the management of elections (s. 12(1c)-(1d)).

On the other hand, as regards the presidential elections law, section 56(2) of the Presidential Elections Act 2005 is substituted to provide for the electronic transmission of electoral results by returning officers to the Commission—that is, the return form, tally-sheets and declaration of results forms. The electronic transmission requires copies to be availed to political parties and candidates, though it does not do away with delivery of hard copies of the listed documents to the Commission.

The twin amendments on use of technology in elections may be seen as a response to fourth recommendation of the Supreme Court in Mbabazi v. Museveni case, in which the Court required enactment of a law to regulate use of technology in the conduct and management of elections.

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Qualifications of Presidential Candidates

The most consequential amendments in the electoral laws is on the qualifications of candidates. The Presidential Elections (Amendment) Act 2020 does away with erstwhile section 4(1)(b) of the Presidential Elections Act No 16/2005 which stipulated age-limits for candidates in presidential elections. The amendment aligns the 2005 Act to the amendment to article 102 of the 1995 Constitution (as effected by the Constitution (Amendment) Act 2018) which removed age-limits as a qualification for candidates in presidential elections. It is to be noted that the removal of constitutional age-limits in presidential elections was affirmed by the Supreme Court in Male Mabirizi & Others v Attorney General, Const Appeal No2/2018 [2019] UGSC 6).

There are other minor amendments by the Presidential Elections (Amendment) Act 2020 that are tied to circuitous qualifying requirements under the 2005 Act of a candidate for election as President being qualified to be a member of Parliament. It therefore repeals the existing section 4(3) of the 2005 Act (in any event, several of the qualification requirements therein are now captured in the amended section 4(1))and amends what constitute disqualifying factors for election as President under section 4(4).

Presidential elections and petitions

The Presidential Elections(Amendment) Act 2020 addresses the timelines for holding of presidential elections and management of presidential election petitions.

(a) Firstly, it amends section 2 of the Presidential Elections Act No 16/2005 by expanding the period within which the presidential election should be held before expiry of an existing term—that is, from 90 days to 122 days. In reality, this should be viewed as a consequential amendment in the wake of adjustments to the time frames for the filing and determination of presidential election petitions.

(b) Secondly, it amends subsections (2) and(3) of section 59 of the 2005 Act by expanding the time frame for the filing of a presidential election petition and its determination by the Supreme Court. The amendments address this by—

(i) expanding the 10 days’ period within which to file presidential election petition (after an election) to 15 days;an

(ii) expanding the 30 days’ period within which the Court is to determine the presidential election petition to 45 days.

(c) Thirdly, it amends section 59(10) of the 2005 Act by expanding the time frame within which fresh elections should be held(in the event the presidential election is annulled). It addresses this by expanding the 20 days’ period within which to hold fresh elections (after the annulment of election) to 60 days.

The above amendments are to be viewed as a response to first and third recommendations of the Supreme Court in Mbabazi v. Museveni case. In its first recommendation, the Court expressed concern over the in adequacy of the 10 days’ period within which to file a presidential election petition(after an election) and 30 days in which the Court has to determine the election petition and thus recommended at least 60 days for the entire process. In its third recommendation, the Court considered 20 days within which a fresh election must be held after annulment of a presidential election unrealistic and called for a longer and more realistic time frame.

Notably,the amendments are another set of provisions that seek to align the Presidential Elections Act No 16/2005 with the 1995 Constitution (in light of the amendment to article 104(6) by Constitution(Amendment) Act 2018).

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Campaign Rallies In Presidential Elections

The Presidential Elections(Amendment) Act 2020 amends the provisions of section 21 of the Presidential Elections Act No 16/2005 by stipulating time for holding of campaigns in presidential elections, as between 7 a.m. and 6 p.m. (s. 21(1a)). As a result,it prescribes sanctions for contravention in terms of fine not exceeding UShs 960,000/= and/or imprisonment for not more than 2 years (s. 21(1b)).

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Access to State Owned Media by Presidential Candidates

The Presidential Elections(Amendment) Act 2020 recasts and expands the provisions of section 24(1) of the Presidential Elections Act No 16/2005 on equal access to and treatment on State owned media. It does so in the following ways—

(a) It places the obligation on the Electoral Commission to ensure equal treatment of all presidential candidates on State owned media (recast s. 24(1)).

(b) It mandates State owned media to notify all presidential candidates of available times, broadcast schedules and costs(s. 24(1a)).

(c) It defines State owned media as “media house in which the controlling interest is held by the State” (s. 24(1b)).

(d) It creates sanctions for contravention in terms of fines for State owned media houses and fines and/or imprisonment for persons in charge of State owned media houses (s. 24(1c)-(1d)).

The amendments can be viewed as a response to the fifth recommendation of the Supreme Court in Mbabazi v.Museveni case, where the Court expressed concern that the State-owned broadcaster, Uganda Broadcasting Corporation (UBC), had failed in what is a constitutional obligation (as stipulated under article 67(2)-(3) of the 1995 Constitution) and recommended that the “electoral law should be amended to provide for sanctions against any State organ or officer who violates this constitutional duty”.

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Candidates’ Source of Campaign Finances (incl. fundraising and donations)

The Presidential Elections(Amendment) Act 2020 amends the provisions of section 22 of the Presidential Elections Act No 16/2005, by—

(a) inserting a new subsection (1b) requiring candidates to declare to the Electoral Commission the source of funds for elections within 14 days after the day of nomination.

(b) prohibiting, under revised paragraphs,financial or other assistance from terrorist organizations.

(c) providing for forfeiture to the State by order of court of finances or other assistance obtained in violation of the prohibitions on campaign finance sources under section 22.

Separately, the Presidential Elections (Amendment) Act 2020 amends section 64(9) of the 2005 Act by deleting from what constitute fundraising “donations given by the President” in his official capacity. This amendment is to be understood in the context of prohibition of presidential candidates (or their agents) carrying out fundraising and giving donations during the campaign period (under section 64(7)) and its categorization as an illegal practice (under section 64(8)). It is not quite clear what this amendment achieves, if it is in fact a response to the seventh recommendation of the Supreme Court in Mbabazi v. Museveni case, given that the Court observed that the President may, in course of official duties give donations, even during campaign period and it recommended the prohibition of donations by all candidates, including an incumbent President, so as to create a level playing field for all.

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Representation of New Districts and Constituencies

The Parliamentary Elections(Amendment) Act 2020 amends the provisions of section 8(5) of the Parliamentary Elections Act No 17/2005 by requiring the filling of elective positions of Members of Parliament in respect of newly created districts or constituencies to be deferred until the next general parliamentary elections.

The amendment means that the Electoral Commission will only hold elections for the representatives of new districts or constituencies at the next general election, rather than schedule elections during the term of a Parliament whenever a new district or constituency is created.

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Management of Elections—Voters’ Registers and Cards, Election Officers etc.

The amendments to the electoral laws provide guidance for the management of elections on the part of the Electoral Commission. The amendments to the Electoral Commission Act Cap 140 by the Electoral Commission (Amendment) Act 2020 can be summed up as—

(a) Transmission of voters’ registers to political parties and organizations in the event of by-elections (amendment tos. 18A (introduced by Electoral Commission (Amendment) Act No 15/2010)).

(b) Re-designation of electoral office-bearers in terms of—

(i) registrars as district election administrators (ss. 21 and 23).

(ii) assistant registrars as assistant district election administrators (ss. 22(1), (3) and 23) in respect of a district(replacing a constituency) (s. 22(1)).

(c) Expansion of period/time frame in which voter should notify returning officer of a voter’s card that is lost, defaced, or torn from 7 days to 30 days before polling day (amendment to s. 27). This should avail the returning officers sufficient time to review the circumstances of the loss or defacement and issue duplicate copies of the original voters’ card.

(d) Appointment of returning officers (and assistants) for electoral districts and special interest groups (amendment tos. 30(1)-(5)). The amendments result in new provisions in respect of—

(i) qualifying requirements of moral character and integrity in the appointment as returning officers (or assistants) (s. 30(1a)).

(ii) definition of special interest groups(s. 30(1c))

(iii) appointment of returning officers (and assistants) for special interest groups’ elections (s. 30(2a)).

(iv) vacation and delegation of duties by returning officers (s. 30(2b)-2c)).

(v) transfer of returning officers (or assistants) to another district as basis for removal of the officers (or assistants) (amendment of s. 30(3)(b)).

(vi) participation in election irregularity,illegal practice, or election offence as basis for removal of returning officers(s. 30(3)(g)).

(vii) payment of portion of compensation by returning officer found personally liable for election irregularity or illegal practice (s. 30(7)).

The amendments in section 30(especially in addressing both returning officers and their assistants in subsections (2)-(5)) result in the repeal of sections 31 and 32 of the Electoral Commission Act Cap 140.

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Polling and Polling Procedures

The amendments introduce changes to the commencement of polling in terms of the presiding officers demonstrating the first ballot box as devoid of any contents. The Parliamentary Elections(Amendment) Act 2020 and the Presidential Elections (Amendment) Act 2020 amend sections 30(8) and 31(8) of the 2005 Acts respectively, in requiring that this polling procedure be carried out in the full view of at least ten voters who are registered to vote at the polling station (rather than, as was previously required, in the full view of all present).

These amendments should not be taken as a manifestation of the COVID-19 times and the existing restrictions, as of July 2020, on public gatherings, as they were part of the clauses of the two Bills gazetted on July 24, 2019, although the Bills had a lower number of “at least five voters”.

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Voting of Persons in Restricted Areas,etc.

The amendments introduce changes to procedures for voting of persons in, among others, restricted areas. The Parliamentary Elections (Amendment) Act 2020 and the Presidential Elections(Amendment) Act 2020 amend sections 38 and 39 of the 2005 Acts respectively.Under both amendments, the Electoral Commission may make special provision for voting for “specified persons employed in institutions engaged in the administration of elections, in restricted areas and operation areas”.The notable aspects in the amendments are—

(a) Firstly,they retain the original prescription that an area provided for voting by members of the UPDF shall be outside of any barracks as well as the subsequent prohibition on the creation by the Commission of special or separate polling stations exclusively for the army or security personnel. In effect, as regards presidential elections, this merges the language of the Presidential Elections Act No 16/2005 and the Presidential Elections(Amendment) Act No 14/2010. As regards parliamentary elections, the amendment adds a new s. 38(3) to the Parliamentary Elections Act No 17/2005.

(b) Secondly, the amendments provide a definition of “restricted area” under both the 2005 Acts. Notably, such definition had in fact been introduced in the presidential elections law by the Presidential Elections(Amendment) Act No 14/2010. As regards parliamentary elections, the amendment adds a new s. 38(4) to the Parliamentary Elections Act No 17/2005.

A “restricted area” is defined as including “an area experiencing an epidemic, disaster or insecurity”.It is to be noted that the amendments to both Acts require the Electoral Commission “to publish in the Gazette and in a newspaper of wide national circulation … a list of restricted areas”.

With the COVID-19 pandemic, it may be assumed the amendments aim to classify it as an epidemic for purposes of creating restricted areas for purposes of voting of persons in such areas. However, although this may or may not turn out to be the case during the 2021 general elections, the provisions predate the present COVID-19 times,especially as regards the presidential elections law (with the amendment shaving already existed as far back as 2010).

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Public Officers’ Involvement In Political Campaigns

The Parliamentary Elections(Amendment) Act 2020 and the Presidential Elections (Amendment) Act 2020 introduce new sections 83A and 79A of the 2005 Acts respectively, in banning the involvement of public officers in campaigns (and making it an offence that is punishable by a fine and/or imprisonment).

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Code of Conduct for Political Parties and Organisations

The Political Parties and Organizations (Amendment) Act 2020 amends section 19 of the Political Parties and Organizations Act 2005 and prescribes, by way of a Fourth Schedule, a code of conduct for political parties and organisations that comprises of 16 paragraphs, matters relating to—

(a) objectives and principles of the code of conduct (paras 1-2).

(b) role of political party and organisation and its compliance with the law and code and the rule of law (paras 3-5).

(c) prohibited conduct in terms of (i)abuse of position, (ii) intimidation and violence, (iii) influence peddling,(iv) inflammatory language, etc. (paras 6-9).

(d) relationship between parties and organisations and the Electoral Commission (para 10).

(e) relationship between parties and organisations and the media (para 11).

(f) relationship between parties and organisations and the Uganda Police Force (para 12).

(g) conduct during campaigns, polling process and in relation to election monitors (paras 13-15).

(h) enforcement of the code by the National Consultative Forum (para 16).

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Implications of the Amendments

1. By and large, the amendments seek to align the electoral laws with the recommendations of the Supreme Court in the Mbabazi v. Museveni case and the constitutional amendments introduced by Constitution(Amendment) Act 2018.

2. The necessity for adoption and use of technology in management of elections is recognized in light of the recommendations of the Supreme Court. The incorporation of provisions on electronic transmission of electoral results and electronic display system for tallying of votes is a start. However, there is a need to enact a comprehensive “law to regulate use of technology in the conduct and management of elections” to accord with what the Supreme Court envisaged in its recommendation.

3. In restricting the campaign times in presidential elections, the electoral reforms address concerns that have bedeviled previous elections where campaigns have been held late into the nights. However, there are no similar amendments to the parliamentary elections law.

4. In providing for timely declaration of sources of campaign finance within 14 days after nomination, the electoral reforms address the concerns that have persisted in previous presidential elections since 2005 (or even as far back as 1996) and, apart from adding prohibited financial assistance from terrorist organizations, it is not clear how the sanctions of fine or imprisonment will serve as sufficient deterrence to non-compliance.

5. In requiring equal access and treatment before State owned media—and imposing obligations on the Electoral Commission and sanctions on the media houses (and officials in charge thereof)—the electoral reforms give effect to a recommendation of the Supreme Court and provisions of article 67(2)-(3) of the 1995 Constitution.

6. The electoral reforms streamline the provisions of the presidential and parliamentary elections laws on voting by persons in “restricted areas”.

7. The electoral reforms—in terms of the polling procedures (requiring ten eligible voters to witness empty ballot boxes)and the streamlined provisions on voting in restricted areas in situations of,for instance, epidemics—do not offer clarity as to how campaigns and elections are to be conducted in event the COVID-19 pandemic persists during months leading to the 2021 general elections. This is in spite of any political discourse over so-called “scientific elections”.

8. With political parties and organisations as the main sponsors of candidates for elective positions, it is likely further engagement is necessary in respect of the pertinent provisions of the code of conduct that touch on elections and electioneering within the context of comprehensive electoral law reform.

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Concluding Remarks

The electoral reforms continue to be, as noted a ritual during each election cycle, without very often comprehensive and durable reforms. A comprehensive law on use of technology in elections, more likely to be apt if the COVID-19 pandemic persists, will now be punted until after the 2021 general elections when the regulations may been acted. So is the matter of an Electoral Reform Committee that was included in the Electoral Commission (Amendment) Bill No 19/2019 (as gazetted on July 24, 2019). It is to be noted that, in its sixth recommendation in the Mbabazi v.Museveni case, the Supreme Court had recommended that“any election related reform be undertaken within two years of the establishment of the new Parliament in order to avoid last minute hastily enacted legislation on elections”. With 6-7 months to the 2021 elections, the election-related reforms in the amendments constitute what the Court condemned as hastily enacted legislation. The result is that critical amendments,for instance, on the participation of independent candidates—that were contained in the Parliamentary Elections (Amendment) Bill No 18/2019 and the Presidential Elections(Amendment) Bill No 17/2019—were abandoned in the final versions of the amendment Acts, yet this is a critical area of elections, as underpinned by Hon Amama Mbabazi’s candidature in 2016 presidential elections and individuals who have participated as independent candidates in previous parliamentary elections (and whose legal ramifications are underscored in decisions such as Attorney General v George Owor,Const Appeal No 1/2011 [2014] UG SC 100 (Uganda SC).

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Disclaimer

No information contained in this alert should be construed as legal advice from ALP East Africa or ALP Advocates or the individual authors, nor is it intended to be a substitute for legal counsel on any subject matter.

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