By TheSpy Uganda
Kampala: Following the Electoral Commission (EC) road map announced last month that banned public campaign rallies in favor of digital campaigns with an aim of preventing the transmission of the COVID-19 virus, counsel semakadde says it greatly offends cardinal principles of constitutional democracy therefore it’s unconstitutional and invalid.
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.
Justice 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.
However, CEO Legal Brains Trust, a Kampala-based democracy and human rights watchdog Counsel Isaac Semakadde says 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” Semakadde said.
Counsel adds that the EC’s directive to ban public campaign meetings and require candidates to campaign digitally will have a more harmful effect of forbidding and discouraging ‘the active participation of all citizens at all levels in their governance’, adding “it is 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.”
He further said that the EC is convinced that Covid-19 prevention rules currently in force throughout the country prevent a normal general election from being held, saying that 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” he said.
Semakadde says this is an act of human rights violation since 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.
He adds that ‘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.
“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” Counsel said.
Semakadde says 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” he said.