September 01, 2017

FOR IMMEDIATE RELEASE

Sept. 1, 2017

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NAIROBI — Following the decision issued today by Kenya’s Supreme Court, The Carter Center commends the court for conducting an open and transparent judicial process, which gave all parties the opportunity to be heard and ensured due process consistent with the constitution and laws of Kenya.

In response to an election petition challenging the results of the Aug. 8 presidential elections, the court ruled the election null and void based on irregularities and illegalities committed by the Independent Election and Boundary Commission (IEBC) in the transmission of results.

The Carter Center’s Aug. 10 preliminary statement following the election noted that election day voting and counting processes had functioned smoothly but that the electronic transmission of results proved unreliable. The statement also noted that the IEBC’s tabulation process, if fully implemented, would allow for a high level of transparency and accountability. Following the elections, the co-leaders of the Center’s mission, former U.S. Secretary of State John Kerry and former Prime Minister of Senegal Aminata Touré, publicly discussed concerns about the transmission of results and encouraged all stakeholders to cross-check results during the tallying process and to use established legal processes to address any concerns, and refrain from violence.

The Center issued another statement on Aug. 17 urging the Independent Election and Boundaries Commission to continue to collect and publish the results forms transparently, so that the overall integrity of the process could be verified.

In both statements, the Center stressed that the electoral process was not yet complete and that an overall assessment could not be given until its conclusion, including the resolution of any electoral petitions. Today’s ruling is both important and encouraging, because it highlights the independence of the Kenyan judiciary and its important role as a key institutional pillar in Kenya’s democracy.

The Center affirms the observations and conclusions in its Aug. 10 and Aug. 17 statements and notes that the Supreme Court’s ruling is focused on problems that occurred during the transmission of results that impacted its integrity, and not the voting or counting processes.

Now that the Supreme Court has ruled, it is incumbent on all Kenyans to accept the ruling and prepare for fresh elections. The Center urges the court to release its detailed ruling as soon as possible so that it can inform the new election process going forward, and further urges all stakeholders to support a fully transparent and peaceful process.

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Ben Spears

Program Associate, Democracy Program

The Carter Center

Atlanta, GA

(404) 614-3768

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www.CarterCenter.org

A Critical Analysis of the Supreme Court Decisions

Fred Sekindi

Dr. Fred Sekindi is a lecturer in International Public Law and International Human Rights at Nkumba University and a consultant tutor with the African Prisons Project in Uganda email: This email address is being protected from spambots. You need JavaScript enabled to view it.

ABSTRACT

This article analyses the constitutional and domestic legal framework under which the president of Uganda has been elected since 1995. The focus is on the three Supreme Court decisions in the adjudication of presidential electoral disputes in 2001, 2006 and in 2016. It argues that presidential electoral laws are deficient in their capacity to facilitate fair political contestation. This is because they were not adequately constructed to address electoral malpractices pertaining to Uganda, and they have been interpreted to favour the incumbent.

Keywords: Constitution of Republic of Uganda 1995, electoral offences, presidential elections, presidential electoral laws, presidential electoral petition, Supreme Court

INTRODUCTION

The post-1995 constitutional reforms in Uganda were aimed at averting violent struggles for political power. One of these reforms was the introduction of direct presidential elections. The significance of this is that since the Constitution of 1995 came into force, and for the first time in the country’s history, the majority of Ugandans could elect their president directly. In addition, more Ugandans than before are eligible to stand for election as president. This article studies how the Supreme Court in Uganda has adjudicated presidential electoral disputes since 1995. It evaluates the efficacy of the constitutional and domestic legal framework under which the president of Uganda is elected, in protecting fair political contestation in order to achieve its objectives. This article further argues that presidential electoral laws have been constructed without attention to the electoral lawlessness prevalent in Uganda. These laws make it almost impossible to challenge the outcome of the election, particularly where the declared winner is the incumbent. Therefore, the laws are incapable of converting votes into a truly democratic choice, and are consequently unable to avert violent struggles for political power.

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At about 1:40am on the morning of Tuesday, the returning officer of Kaabong district, Sarah Iyolu, declared Rose Lilly Akello winner of the hotly contested by-election for the district’s Woman MP, stretching NRM’s victory in by-elections thus far to six. The other four of the 10 parliamentary by-elections held since the February 18, 2016 elections, have been won by two NRM-leaning independents; Hood Katuramu and William Wilson Nokrach (People with disabilities) and opposition-leaning independents; Robert Kyagulanyi (Bobi Wine, DP) in Kyadondo East and Lucy Achiro Otim, FDC, in Aruu North.

 

This string of losses by the opposition is in sharp contrast with its show of might during the 2011-2016 cycle, when opposition candidates won most of the by-elections. In Kaabong, the opposition fielded one candidate, FDC’s Judith Adyaka Nalibe, who finished last with 593 votes. A difference of only 256 votes is what NRM’s Akello needed to defeat Christine Tubo Nakwang, an NRM-leaning independent candidate. Akello garnered 21,814 votes against Nakwang’s 21,558 votes.

The seat fell vacant after the Court of Appeal upheld an earlier ruling by the High court in Soroti that nullified Nakwang’s election on grounds of voter bribery. Nakwang slaughtered a ram for a feast and bought drinks for over 100 voters on the eve of the February 18, 2016 elections, contrary to Section 68 of the Parliamentary Elections Act 2007.

DEPLOYMENTS

Unlike in areas with noticeable opposition support where security deployment was heavy, in Kaabong there was little visible security deployment. According to Crispin Kaheru, the head of Citizens’ Coalition on Electoral Democracy in Uganda (CCEDU), the only visible security personnel were polling constables deployed at polling stations. “Polling officials including polling constables appeared knowledgeable about polling procedures [although] in some instances, they assisted voters to cast their vote, which is against the electoral laws,” Kaheru said. A heavy downpour disrupted counting of votes and the poor road network delayed the transmission of results from across the 19 sub-counties in the district to the tally centre at Kaabong Magistrate’s court hall. According to Kaheru, by 8:30pm, full results from only four sub-counties had been received at the tally centre. Several people gathered outside the tally centre till the wee hours of Tuesday morning when election results were announced. There was an 80 per cent voter turnout. Polling in Monday’s by-election, which has been described by observers as generally peaceful and calm, started late in some areas due to the late arrival of polling officials. There were also issues with the biometric voter verification kits especially in the rural parts of the district where a number of voters were turned away after the machines failed to read their fingerprints. At Meus polling station in Kapalata sub-county, several voters were asked to wash their hands with soap after the presiding officer, Walter Lokiru Ngole, suspected that the machine failed to read their fingerprints because of dirt. In other cases, some polling officials forgot the pin codes for the biometric voter verification kits.

NRM STRONG

At the tally centre in Kaabong, NRM electoral commission chief Tanga Odoi was at hand to receive his party’s sixth by-election victory. He told The Observer that the victory had further proved NRM’s strength. “This was a tight race between two NRM ladies and the number of votes that separated them today is what [has separated them] in the previous elections, including the party primaries,” Odoi said yesterday. There is no opposition here [Kaabong] and what the NRM needs to do is to sit with them [Akello and Nakwang] and reconcile them,” he added. According to the senior presidential press secretary, Don Wanyama, the NRM by-election victory had disproved the opposition’s claim that 2016 elections were rigged. “It is a testament of how hollow the opposition’s claims are of NRM rigging elections. The by-elections are testament that NRM is still a strong and popular party across the country,” Wanyama said. The NRM Secretariat’s communications officer, Rogers Mulindwa, said that as the party celebrates the recent achievements, it needs to work towards minimising instances that bring up independents. At least 32 of the 66 independent MPs had lost the 2015 NRM primary elections.

WEAK STRUCTURES

Internal bickering within the parties and the failure to create strong structures in the countryside is one of the factors working against the opposition. Party structures are crucial in mobilisation for a candidate as well as assembling machinery for protection of the vote on polling day. NRM boasts of structures at the village level across the country, which is not the case with opposition parties. “The by-elections have exposed a lot of internal disorganisation in the opposition; they are not on ground, they don’t have any structures and are indeed very far from taking state power,” Wanyama said. The president general of the Democratic Party (DP), Norbert Mao, said the opposition has in some instances gone into the by-elections ill-prepared. “The calibre of candidates we take to the elections is very important. Sometimes we have fielded people who are not well known, people with no connection to the community. That is what we [DP] suffered in Aruu North; we took a Kampala- based candidate who had no connection with the community,” Mao said. This could be the same case with Nalibe, the FDC candidate in Kaabong. “In some areas, it is not easy to raise a candidate. Areas like Karamoja, which are state-run areas, having a candidate there is a great achievement,” said FDC spokesman Ssemujju Ibrahim Nganda. According to Ssemujju, it would be unfair to judge the opposition based on areas known to be NRM strongholds. The Leader of Opposition in Parliament, Winfred Kiiza, however, argues that sometimes, the opposition sees no reason of fielding candidates in an election whose outcome is predetermined. “Ugandans are seeing no reason why they should continue voting in an election that they know are already rigged. Credibility of our elections is a big issue that has demoralised voters,” Kiiza said. But Mao thinks opposition parties need to address the issues that have kept them disunited. “To a larger extent, the opposition was united [during the 2011-2016 cycle] unlike now when opposition forces are in disarray and playing into the hands of NRM,” Mao said.

Story Published by The Observer

 

Kenya’s opposition political party recorded a fourth straight loss in the country’s General Election on August 8, after leader Raila Odinga trailed incumbent Uhuru Kenyatta. Just four days earlier, Rwanda’s Paul Kagame of the Rwanda Patriotic Front (RPF) had trounced his opponents — former journalist and independent candidate Phillipe Mpayimana and Democratic Green Party leader Frank Habineza who garnered less than two per cent of the total votes between them against the president’s over 98 per cent.

Last year, Uganda President Yoweri Museveni through his ruling party National Resistance Movement managed a comfortable albeit contested defeat of the opposition, at 60.6 per cent, to retain power in Kampala. His main challenger, Kizza Besigye of the Forum for Democratic Change (FDC) party, got 35.6 per cent of the votes. In 2015, Tanzania’s dominant party Chama Cha Mapinduzi (CCM) maintained its decades-old hold onto power by beating its opponents in the Chama Cha Democrasia na Maendelo (Chadema). CCM’s John Pombe Magufuli had an almost 20 per cent gap between himself and his closest challenger Edward Lowassa, at 58.46 per cent against 39.9 per cent. Mr Odinga has now challenged President Kenyatta’s 10 percentage point win at the country’s Supreme Court. Representation While the numbers represent only the run for the presidency, representation in executive positions is minimal in each of the four countries.

The exception is Rwanda, where the Constitution guarantees the opposition a 50 per cent share of Cabinet positions. Any appointment of opposition members to executive positions in the other three countries only drains the opposition of much needed numbers, while muting others who expect similar appointments. For his Cabinet, President Museveni tapped from the opposition Betty Amongi from the Uganda People’s Congress (UPC), Nakiwala Kiyingi from the Democratic Party and Betty Kamya, a former presidential candidate and leader of the Uganda Federal Alliance party. Opposition parties also fare badly in parliamentary and local government representation.

Tanzania’s CCM enjoys a clear majority, with 252 seats in Parliament out of 367 (188 constituency seats and 64 women special seats), and the main opposition party Chadema has just 34 directly elected seats and 36 special women seats. The Civic United Front follows has 42 seats (32 direct constituency and 10 women seats). Uganda’s NRM enjoys a parliamentary majority with 293 of the 426 seats. The party is followed by independent MPs with 66 seats, while the combined opposition has 57 shared between FDC at 36, the Democratic Party at 15 and UPC with six seats.

The army, which usually sides with the ruling party, has 10 special seats. Democracy What does the poor showing of the opposition mean for democracy in the region? In Rwanda, Tanzania and Uganda, the opposition numbers are too small to significantly challenge the ruling party and influence policy. Lack of numbers in elected positions means less financial resources for the opposition.

Crispy Kaheru, an elections specialist and the co-ordinator of Citizens Coalition for Electoral Democracy in Uganda (CCEDU), says that the opposition’s poor showing means that they need to “go back to the drawing board and re-evaluate themselves. They need to realise that they cannot continue doing business as usual, and design new strategies like forming alliances and moving from the traditional template of social ideals that framed the formation of parties at Independence.” In its report of Tanzania’s 2015 elections, the Commonwealth Observer group noted: “The Group observed the dominance of the governing CCM party in the election campaign. They appeared extremely well-resourced and organised. The CCM, as the governing party, appeared to enjoy advantages of incumbency.

The opposition parties, namely Chadema, CUF and others, also had profiles on the ground but appeared to be less resourced, which had an impact on the conduct of their campaign.” Mr Kaheru, a member of the African Union expert panel of election observers and has observed elections in Uganda, Kenya, Ghana, Zimbabwe and South Africa, noted, “There is a need to re-examine the advantages of incumbency in elections vis a vis opposition in the region. There are of course reasons that explain this,” he said. Control of security and agencies that coerce the electorate, control of state coffers, and public service apparatus aid in the creation of a “firm network for them to carry out campaigning effectively,” he added. Incumbents also enjoy the advantage of setting electoral legislation.

While a number of opposition parties support the RPF and actively and openly campaigned for President Kagame in the just concluded elections, it is difficult to tell exactly how their collaboration aids alternative voices and their ability to keep the party in power in check. Opposition parties have cried foul over manipulation of processes, a tilted playing field, incumbents access and abuse of resources and outright rigging. However, their own lack of organisation, inability to guard their votes and inadequate resources have played a role in their losses.

This article was Published by The East African

The Citizens' Coalition for Electoral Democracy in Uganda (CCEDU) has called for torelance, peace and respect for the constitution and rule of law. The call was made by the CCEDU co-ordinator, Crispy Kaheru on Friday evening as Kenyans waited for the announcement of the winner for the August 8 presidential elections.

Kaheru called on the losers to respect the outcome of the election, emphasizing that Kenyans do not want to live on a diet of hatred and fear. He encouraged the new government to consider the ethinic shades of the Kenyans when forming the new government.

“This will involve an inclusive discussion on the future of the nation and its political and social order,” he said. By Friday evening, results indicated Uhuru Kenyatta leading with 54%, closely followed by Raila Odinga with 44%, although Odinga disputed the results saying the transmission had been hacked into.

Published by The Newvison

 

 

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