Legislators sitting on Legal and Parliamentary Affairs Committee have grilled officials from the Uganda Law Reform Commission accusing them of failure to advise Parliament on necessary electoral reforms. The Reform Commission officials led by the Chairperson Vastina Rukimirana Nsanze appeared before the committee chaired by West Budama South MP Jacob Oboth-Oboth to respond to the proposed Age Limit Bill, 2017.
Uganda Law Reform Commission officials led by the Chairperson Vastina Rukimirana Nsanze appeared before the committee chaired by West Budama South MP Jacob Oboth-Oboth to respond to the proposed 'Age Limit' Bill, 2017.
The Bill tabled by Igara West MP Raphael Magyezi seeks an amendment to Article 102(b) which caps the presidential age at 35 and 75 years as minimum and maximum age for the holder of a presidential office.
In her presentation, Nsanze responded only to the proposed amendments in the 'Age Limit' Bill and avoided giving the committee conclusive recommendations.
She noted a study of jurisdictions in some African countries that have a lower and upper age limit for presidential candidates.
She noted that the lower age limit is 35 in Rwanda and 40 in Tanzania while the upper age limit for Gambia is 62, 75 for Burkina Faso and Djibouti.
"Drawing from the above cases reviewed, Parliament may wish to choose which position to harmonise with. Harmonisation with the practise in the East Africa Region could be one such option. This would apply to both the issue of minimum and maximum age," Nsanze recommended.
She also noted that the process of amending Article 102(b) should involve wide consultations to ensure that Ugandans give their views and ownership is created for the proposed amendments.
The law reform commission also recommended that Parliament should consider the mischief that the provision of Article 102(b) was intended to cure and determine whether there is merit in retaining or amending the article.
The MPs, however, expressed their dissatisfaction with the commission for failing to give a conclusive recommendation concerning Article 102(b). They also noted the Commission's failure to speak out on outstanding electoral reforms directed by the Supreme Court in 2016 when delivering its judgement in the Amama Mbabazi Vs Kaguta Museveni and 2 Others Presidential Election Petition.
But Nsanze noted that she had only addressed herself to the proposed amendments contained in the Constitution Amendment Bill No. 2 of 2017, commonly referred to as the 'Age Limit' Bill. She said the Supreme Court was specific that the Attorney General personally follows up its recommendations.
However, MPs led by Bugweri County MP Abdu Katuntu and his Busiro East counterpart Medard Lubega Sseggona, insisted that it is the responsibility of the Commission to make specific recommendations to Parliament considering that the duration of two years set by the Supreme Court is running out.
Sseggona stated that the commission has a constitutional and statutory mandate to keep abreast with necessary reforms even when the Supreme Court put the responsibility on the attorney general.
"You have less than 4 months to act on electoral reforms; you want to say that the court judgment has taken away your mandate, responsibility?" Sseggona questioned.
Sseggona put it to the Commission officials that their work is to keep laws under constant review and make recommendations.
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Katuntu noted that the recommendations of the Commission were empty and shallow and didn't offer any advice to parliament.
He singled out the mischief referred to by the commission on Article 102(b) in their recommendations without highlighting the mischief and what the framers of the constitution, both the Odoki Commission and the Constituent Assembly, said about the issue.
"This is an institution that is given resources to carry out its mandate. Shortage on their part it's our duty to let them know. They should recognise their mandate and matters related there to, the Commission should have considered matters related other than the proposed amendments," said Katuntu.
Katuntu noted that the proposed scraping of the presidential age limits has caused controversy across the country and that by now; the Commission should have come up with recommendations.
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Masaka Municipality MP Mathias Mpuuga also noted that he had painfully failed to understand the challenge of the Commission.
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Kumi Woman MP Monica Amoding noted that the Commission was running away from its duties.
"I clearly see you are leaving us to the option of lifting the lower limit and leave the upper limit. I don't know if the Commission is aligned to the current political question?" asked Amoding.
Kaberamaido Woman MP Veronica Elagu suggested that the officials go back, make neccessary studies and come back with something comprehensive views.
Nsanze however said that her Commission has done some work but they did not anticipate that they would be asked about the Supreme Court decision.
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Committee chairperson Oboth-Oboth also noted that his committee is currently carrying out consultations and they cannot be doing the study which the Commission is mandated to do. He directed the Commission officials to avail the committee with a written response in regard to the Supreme Court recommendations.
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What the Supreme Court Recommended
In August 2016, Supreme Court justices led by Chief Justice Bart Katureebe came out to make 10 recommendations aimed at creating reforms hoped to guarantee free and fair presidential elections in 2021 and beyond.
This followed a court judgement of the presidential election petition filed by former presidential candidate Amama Mbabazi challenging President Museveni's February 18th victory.
Court directed the Attorney General (AG), who is the chief government legal adviser, to follow up these recommendations and report back to court within two years on the progress.
"We note that most of the recommendations for reform made by this court in the previous presidential election petitions have remained largely unimplemented. It may well be that no authority was identified to follow up. We have further noted that the AG may object to withdrawal of proceedings. Therefore the AG is the authority that must be served with the recommendations of this court for necessary follow up."
Period to File Petitions
Core to these recommendations was that the 10-day period within which to file a presidential election petition and also gather evidence to support it and the 30-days period within which the Supreme Court is to determine the same petition, is unrealistic.
To that effect, the justices recommended that the law should be amended to extend the filing and determination period to 60 days to enable the concerned parties and court to adequately prepare and present their case.
"We recommend that the period be reviewed and necessary amendments be made to the law to increase it to at least 60 days to give the parties and the court sufficient time to prepare, present, hear and determine the petition, while at the same time being mindful of the time within which the new president must be sworn in," they recommended.
Role of Public Officials
Court also recommended a law to be enacted to bar the involvement of public servants from meddling in elections.
In the March 2016 presidential election filed by Mbabazi, one of the grounds that he raised before court to annul President Museveni's victory was that public officers such as the executive directors of KCCA and UNRA, Jennifer Musisi and Allen Kagina, respectively, had campaigned for President Museveni.
"The law should make it explicit that public servants are prohibited from involvement in political campaigns," ruled the judges.
The court also recommended that there should be no more fundraising or giving out of donations by presidential candidates, including the president, during the presidential campaigns.
Mbabazi had raised the bribery allegation against President Museveni when he alleged that the incumbent had bribed the electorate of West Nile with hand hoes.
"Section 64 of the PEA deals with bribery. We note that Section 64(7) forbids candidates or their agents from carrying out fundraising or giving donations during the period of campaigns. Under Section 64(8), it is an offence to violate section 64(7). However, we note that under Section 64(9), a candidate may solicit for funds to organise for elections during the campaign period. Furthermore, a president may, in the ordinary course of his/her duties, give donations even during the campaign period," observed the justices.
Adding: "this section in the law should be amended to prohibit the giving of donations by all candidates, including a president who is also a candidate, in order to create a level playing field for all."
The justices further in their recommendations to government, observed that while technology in election process should be encouraged such as how the Electoral Commission (EC) introduced the use of the biometric voter machines in the February 18 general election, the justices said the same should be backed by law.
On the issue of state media outlets not giving equal airtime to the opposition candidates to market themselves to the electorate during the campaigns, the justices were of the view that a law should be amended to provide for punishment of those media managers and houses who refuse to grant equal airtime to all presidential candidates.
Mbabazi had accused Uganda Broadcasting Corporation (UBC) of having only aired out President Museveni's campaign messages and also given him airtime to carry out his campaigns and yet other candidates were denied the same opportunity.
"Both the Constitution in Article 67(3) and the PEA in Section 24 (1), provide that all presidential candidates shall be given equal time and space on State-owned media to present their programmes to the people. We found that UBC had failed in this duty. We recommend that the electoral law should be amended to provide for sanctions against any State organ or officer who violates this constitutional duty," the justices recommended.
Court addressed itself to the amendments that were made just a few weeks to the start of the presidential campaigns. The justices recommended that in case there is need to amend electoral laws, the same should be done two years prior to the campaigns.
During the cross examination of the then Electoral Commission Chairman, Dr Badru Kiggundu in the Supreme Court, he confessed to have extended the period for nomination of presidential candidates because of the late amendment in the electoral laws that somehow disrupted their planning and flow.
The amendments saw the presidential candidates who were previously given money and cars to help them in campaigns, the same logistics were withdrawn. The presidential nomination fee was also increased from Shs8m to Shs20m.
"We observed that the ECA and the PEA were amended as late as November, 2015. Indeed, the chairman of the commission gave the late amendment of the law as the reason for extending the nomination date. We recommend that any election related law reform be undertaken within two years of the establishment of the new Parliament in order to avoid last minute hastily enacted legislation on elections," the judges ruled.
AG to Be Party
The justices also recommended that the law should be amended to make it permissible for the Attorney General to be one of the respondents in the presidential election on grounds that there are certain issues that need the response of the Attorney General.
As it is now, the electoral laws don't provide for the inclusion of the Attorney General as one of the respondents in the election petitions. Mbabazi had in his poll petition included the Attorney General as one of the respondents.