While appearing in several public forums to defend the exercise that some have dubbed a ‘scientific election’, Justice Simon Mugenyi Byabakama, the EC chairperson, stressed that Article 61(2) of the Constitution requires the EC to hold the forthcoming elections within the first 30 days of the last 120 days before the expiration of the current term of the president, notwithstanding the government’s anti-coronavirus measures which, among others, ban public meetings, including political rallies.
The judge also fingered section 50(1) of the Electoral Commission Act which grants the EC special powers to issue particular or general instructions to meet the exigencies of ‘an emergency or unusual or unforeseen circumstances’ during the electoral process, such as the COVID-19 pandemic.
He further said that section 21(1) of the Presidential Elections Act, section 20 of the Parliamentary Elections Act, and sections 123(5) and 172 of the Local Government Act grant the EC further powers to determine the time and manner of candidates’ campaigns anyway.
Be that as it may, I would be seriously remiss if I did not point out that the EC directive to conduct candidates’ campaigns digitally is plainly unconstitutional and invalid. Here is why.
Constitutional supremacy
First and foremost, the EC’s discretion to determine the time and manner of candidates’ campaigns under the aforementioned electoral laws is not absolute.
It is plainly qualified by an overriding constitutional duty to organise, conduct and supervise ‘free and fair elections’ as defined by the Supreme court in the 2001, 2006 and 2016 presidential election petitions, and approved and adopted by the Constitutional court in Rubaramira Ruranga v. Electoral Commission & Attorney General, Constitutional Petition No 21 of 2006 – the four leading cases which determined, among others, that ‘to ensure that elections are free and fair, there should be sufficient time given for all stages of elections, nomination, campaign, voting and counting of votes.’
In Ruranga’s case, court quashed EC guidelines that sought to limit candidates’ campaigns in local council, women’s council and youth council elections to just five minutes.
Despite its good intentions, the EC directive to ban public campaign meetings and require candidates to campaign digitally will obviously have a more harmful effect 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. It is, to that extent, unconstitutional and invalid.
State of Emergency
The EC is convinced that Covid-19 prevention rules currently in force throughout the country prevent a normal general election from being held, otherwise it would have not invoked section 50(1) of the Electoral Commission Act as the legal basis for its ad hoc ban on political rallies and requirement to conduct candidates’ campaigns digitally.
Unfortunately, the EC’s inventiveness in this manner greatly offends cardinal principles of our constitutional democracy. It is based on a misguided, biased and self-serving interpretation of the Constitution and our electoral laws.
Instead of purporting to invent a makeshift scientific election as a response to Covid-19, an independent EC, acting in good faith to protect the life of all Ugandans, ought to have reported to the president, parliament and all stakeholders that the Covid-19 situation prevents a normal general election from being held so that the president would then be duty-bound to declare a state of emergency in terms of Article 110(1)(c) of the Constitution, or ease Covid-19 rules appropriately with a view to safeguarding our constitutional democracy.
Human rights violations
Lastly, the EC has ignored the fact that, in exercising its powers under the aforementioned electoral laws, it remains duty-bound to respect, uphold and promote the 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.
Whereas the rights and freedoms at issue may be limited as a means of combating Covid-19, the restrictions invoked by the EC and government for this aim must not be arbitrary, unfair or based on irrational considerations.
They must be evidence-informed and revisited frequently with a view to restoring normalcy.
Lastly, they must not impair the rights and freedoms at issue disproportionately, i.e. beyond what is necessary to accomplish the intended lawful objective.
In short, the limitations must be acceptable and demonstrably justifiable in a free and democratic society. They cannot be speculatively justified under the banner of ‘unique local circumstances’.
Applying this strict weighing and balancing test in Art 43 of our Constitution, the requirement to conduct candidates’ campaigns digitally is not a reasonably justifiable measure for dealing with Covid-19.
To illustrate the EC’s failure to follow the constitutional approach, I will cite a few dangers.
First, “to campaign digitally” is not defined in any gazetted instrument, which means that it shall be the subject of multiple interpretations by law enforcement authorities, including the notoriously trigger-happy LDUs who may shoot candidates and their agents for merely taking a stroll on the street or handing out a flyer to a potential voter in a market.
Secondly, there is unacceptable vagueness concerning the range of prohibited conduct. Is it only political rallies or public gatherings of all kinds that are barred? Are processions also prohibited, and if so why?
How about the statutory meetings of political parties and other political organisations?
This ambiguity creates a chilling effect on many rights and freedoms of candidates and political parties, e.g., delegates’ conferences, meetings to select party flag bearers, resolve party conflicts arising party primaries, train flag bearers and polling agents, and consultative meetings with the candidate’s campaign agents for planning and organising the candidate’s election campaign, freedom of expression and access to information, freedom of movement, to mention but a few.
Thirdly, the directive is based on speculative considerations. For instance, there is no evidence of adequate and balanced distribution of media resources, appropriate levels of media literacy and rural electrification, etc, across the country to make this directive fair for all.
Lastly, there is abundant evidence of the potential for interference with or obstruction of electioneering activities of other persons, especially those in opposition, so as to gain unfair advantage in the election over them. The suggested regulation of private electronic media in the manner that would promote equality is a legal impossibility, given the constitutional protection of media freedom.
In conclusion, this directive represents an improper use of discretionary powers conferred on the EC which admits that it consulted scientists exclusively from the ministry of Health, as urged by the President during the Covid-19 lockdown, before reaching this decision.
An independent constitutional body, acting reasonably within its mandate, could not have consulted a narrow range of opinion on such an important issue.
It would have diversified the range of scientists to consult since the government’s health experts are the authors of the Covid-19 regulations in issue and they are obviously interested in their continuity, despite the demands of democracy.
Also Covid-19 is both an issue of public health and human rights. Yet, as admitted by the EC, disproportionate attention was given to public health considerations and scientists were entrusted with determining issues of our constitutional democracy for which they are not only incompetent but ill-suited.
The author is CEO Legal Brains Trust, a Kampala-based democracy and human rights watchdog.