Hon. Chairperson and Members of the Legal and Parliamentary Affairs Committee,
Parliament of Uganda
We address this Honourable Committee on matters related to how FREE AND FAIR ELECTIONS are PARAMOUNT to our Democracy, even during a pandemic like COVID-19.
Thank you for the invitation to appear before your Committee and comment specifically on the recently revised electoral roadmap. This is our brief written statement.
In the revised roadmap, the Electoral Commission announced a ban on public campaign meetings and imposed a requirement on all candidates in the forthcoming Local Government, Parliamentary and Presidential elections to ‘campaign digitally’, allegedly as part of anti-coronavirus measures.
The Forum for Democratic Change (FDC) is strongly opposed to this initiative because it is undemocratic. Even as we strive to prevent and suppress the COVID-19 pandemic, free and fair elections should remain paramount to ensure the sovereignty, stability, security, well-being and prosperity of Ugandans.
In Constitutional terms, this initiative is an overreach. It exceeds the limits of discretion constitutionally conferred on the Electoral Commission or Government.
In practical terms, it is not culturally and contextually conducive to Ugandan politics.
While it may contribute to the prevention and suppression of COVID-19, we are concerned that this novel idea will have unwelcome effects of forbidding and discouraging ‘the active participation of all citizens at all levels in their governance’, and is therefore inconsistent with ‘democratic principles’ as enshrined in paragraph II(i) of the National Objectives and Directive Principles of State Policy and Articles 1(4) and 61(1)(a) of the Constitution.
Furthermore, it will trample excessively on fundamental rights and freedoms enshrined in Article 59(1)(a) (the right to vote) as read together with Articles 29(1)(a), 29(1)(d), 29(1)(e) and 29(2)(a), i.e. freedom of speech, freedom of assembly and peaceful protest, freedom of association and freedom of movement respectively.
Yet, as many stakeholders have pointed out here and elsewhere, there are less drastic means of averting the pandemic without destroying the pillars of our constitutional democracy. For the sake of brevity, I will not repeat them. Suffice it to say that the Interparty Organisation for Dialogue (IPOD), of which FDC is a member, presented its proposals in this regard to the Electoral Commission on 19 June 2020. (See copy attached)
In all fairness, it is within the power of the Electoral Commission and Government, acting in good faith and in consultation with Parliament, political parties and other stakeholders, to consider and adopt some of these logical alternatives to ‘campaigning digitally’. In addition, I would be seriously remiss if I did not caution against further arbitrariness, unfairness and irrationality in the rule-making processes of the Electoral Commission and Government (including the police and other armed services) at this critical juncture.
This is not the occasion to exploit and exaggerate the pandemic for setting arbitrary limits on people’s liberties.
For instance, we should not arbitrarily favour elite American style town hall meetings while banning public gatherings in stadiums, recreation centres, public parks, and other ‘open air’ settings which can be appropriately delineated and policed for the sake of complying with COVID-19 control standard operating procedures.
Secondly, we should not arbitrarily limit public gatherings to only 30 or 60 people even in a public stadium like Pece or Kakyeka in the name of COVID-19. Clearly, that is absurd.
Thirdly, we should emphasize individual responsibility as the nation’s first line of defence against the novel coronavirus, which hasn’t killed any Ugandan for the time being.
Respecting people’s dignity, equality and freedom is essential in maintaining public trust.
Paternalistic measures, such as curfew and other high-handed, draconian and repressive means of law enforcement in the name of COVID-19, disproportionately hurt the poor and most vulnerable among us, and are therefore always going to be ineffective in the long run including in the forthcoming elections.
People will simply revolt against the injustice of the system, and abandon any form of cooperation with precautionary public health measures advertised to them.
Lastly, this is not the occasion to exploit the pandemic and amend the Constitution purposely to profit, secure and advantage some individuals or groups interested in retaining power by all means necessary. That would be selfish, counterproductive and most unfortunate.
FDC does not support a hastily undertaken constitutional amendment that is merely aimed at re-arranging our politics in light of the COVID-19 pandemic.
It is important to emphasize that the issue at stake is not when, and on what political and constitutional terms the pandemic is to leave Uganda. We cannot get rid of the pandemic by clever legislation or opportunistic constitutional amendment.
The correct issue, therefore, is whether our Constitution avails sufficient tools to the Electoral Commission and Government to midwife free and fair elections in the context of COVID-19 which has never arisen before.
It is most unfortunate that the EC failed in its duty as an independent Constitutional body to advise the President and Parliament, at the earliest opportunity, that the COVID-19 rules currently in force throughout the country prevent a normal general election from being held so that the President would then be duty-bound to declare a state of emergency or ease the COVID-19 regulations appropriately with a view to safeguarding our constitutional democracy. See Articles 77(4), 103(3)(d), and 110(1)(c) of the Constitution.
FDC strongly believes that our Constitution, in its present form, is capable of rising to the COVID-19 and democracy challenge, and it supplies all authorities and persons interested in the forthcoming elections with the legal tools necessary to enable us to reason to a solution.
Therefore the EC’s insistence in leading the country to part-scientific, part-normal elections which is not backed by the supreme law is a sham and an absurdity, and we reject this in the strongest terms possible as this would amount to a no election.
Besides ‘campaigning digitally’, there’s genuine fear that at the eleventh hour, the EC and Government may further exploit the pandemic to impose on us another aspect of ‘voting digitally’ within the context of a ‘Scientific Election’ which is not recognised in our constitutional order.
All this instability, fear, chaos and confusion arises from the refusal by the government to declare a State of Emergency, at the earliest opportunity to enable the management of the Republic in a transparent and accountable manner during this crisis.
Should it be inevitable, for the country to stray into murky waters of constitutional amendment, the only constitutional amendment the FDC would propose is for the introduction of a TRANSITIONAL GOVERNMENT, which will cater for a situation of no elections at a time when they are constitutionally supposed to take place and the term of the current government is elapsing.
A meaningful, inclusive national dialogue should inform the process of forming the transitional government.
In summary, we reiterate the FDC position that this is not the occasion to unnecessarily tinker with the Constitution once more, under the yoke of the pandemic, while the whole nation is blanketed and broken down by some of Africa’s most brutal ant coronavirus measures, purposely to entrench some individuals or groups interested in retaining political power by all means necessary, that would be selfish, counterproductive and most unfortunate.
Patrick Oboi Amuriat