On Wednesday, Justice Simon Byabakama Mugenyi, the chairperson of the Electoral Commission (EC), reiterated his stand that voters should leave the polling stations once they are done with casting their votes.
‘Let the process of counting the vote be for the polling officials and the candidates’ agents or the observers, if any, who will be at the polling stations. Please let us respect the law,’ said Justice Byabakama.
The EC boss made the remarks during a meeting that the Commission had with agents of the presidential candidates and officials from some of the country’s security agencies.
Justice Byabakama’s comments came about three weeks after the deputy spokesperson of the army and the Ministry of Defence, Lt Col Henry Obbo, directed voters to leave polling stations.
‘When you finish voting, please go home and then wait for the time for the announcement of the results or the time for counting it. That is when you go back, other than crowding the polling stations and becoming a security threat to other citizens or trying to intimidate others at the polling station,’ Lt Col Obbo said.
Confliction
As expected, the directives have since become a big subject for discussion, especially given that the presidential elections are just around the corner. The biggest talking point has been whether they are not in conflict with the law.
Ms Charity Ahimbisibwe, the executive director of the Electoral Laws Institute, a civil society organisation, was one of the first people to raise concerns about them. She was of the view that the EC boss is not operating at the level that he had been expected to operate, given his previous station as a judge.
She argues that Justice Byabakama has failed to interpret the provisions of Articles 1 and 61 of the Constitution.
Article 1(1) provides that, ‘All power belongs to the people who shall exercise their sovereignty in accordance with this Constitution’, while (2) provides that, ‘Without limiting the effect of clause (1) of this Article, all authority in the State emanates from the people of Uganda; and the people shall be governed through their will and consent’.
She adds that Mr Byabakama has also failed to appreciate the importance of the participation of the citizenry in electoral processes.
‘For a judge to become the chairperson of the EC, our hope was that we had got a person of a certain calibre – a calibre that understood the glory of a citizen of Uganda. Ugandans should not be made to feel hopeless because they participated in governance. Why then do we call Ugandans to go and vote? The rationale of calling Ugandans to go and vote is because we recognise the importance that is attached to this Ugandan and we recognise the importance that is attached to this Ugandan deciding on who governs them, and because we recognise that importance, we cannot relegate it to calling them grasshoppers,’ she argues.
Lawyer Allan Mulindwa weighs in, saying the directives of both the army and the EC are in conflict with the provisions of section 33(4) of the Presidential Elections Act.
The section provides that, ‘A voter who has cast his or her vote and all other persons in the vicinity of the polling station other than election officers, candidates, agents of candidates and observers shall stand or sit at least 20 metres away from the table mentioned in sub-section (3).’
The table being referred to is the table at which each voter is to place the authorised mark of choice on the ballot paper.
‘That is the standard the security forces and the Electoral Commission should maintain, not circumventing or creating their own law. If the security agencies sit with the EC and they come up with a guideline, that guideline can only be in conformity with the law. So the EC, even if they sit with the UPDF, they cannot come up and say, ‘this is what you should follow’. They should say, ‘this is what the law says,” Mr Mulindwa says.
What has, however, caused most eyebrows to be raised in all this is the fact that one cannot say that Justice Byabakama does not know what the law says. He actually made it known during Wednesday’s meeting.
‘When I was making that statement, I was aware of what the law provides. The law says you can stand about 20 meters from the table where the basin is. The law is very clear. You can stand 20 meters away, but if you look at some of these locations, the polling station is on the veranda of a shop or shops. At times, we are compelled to block off roads – to close off parts of the roads so that we create ample space for a polling station,’ he said.
The question now is why he is issuing orders that he knows are in contravention of the law.
Mr Mulindwa argues that if the EC and army insist on enforcing the directive, it might lead to legal challenges, which may have grave implications on the entire electoral process.
Other legal minds have since opined that the principle of legal purity would come to apply in such a circumstance. It would mean holding an election in a manner that breaches the law and claiming that the outcome is legitimate.
Suspicions
In concluding the defence of his insistence that the voting public stay away from the polling stations, Justice Byabakama tried to allay public fears that the directive was for purposes of facilitating foul play.
‘When the Electoral Commission was making that urge or caution, it was not for ill motives or ulterior motives,’ he argued.
The problem is that no one seems to believe him. That has a lot to do with the EC’s image among supporters and leaders of the Opposition.
Many Ugandans, especially those in the Opposition, have always viewed the EC as an obstacle to the holding of free and fair elections.
In November 2015, Dr Kizza Besigye, who was the presidential candidate of the Forum for Democratic Change (FDC), accused the EC of impartiality, saying it was ‘serving Mr Museveni’s interests’. ‘EC is serving as a walking stick of Mr Museveni and his regime.I have nothing against the gentlemen occupying the offices of EC, but we have a problem with the institution. We want an independent Electoral Commission, not just in name, but in every aspect,’ Dr Besigye declared. On October 21, 2024, Mr Robert Kyagulanyi, the leader and presidential candidate of the National Unity Platform (NUP), also had a mouthful to say about the Commission.
‘The biggest problem that Uganda has had for a while now is Museveni appointing the Electoral Commission. If the Commission was not appointed by Museveni, elections in the country would be free and fair,’ Mr Kyagulanyi said. The belief that the Commission is biased and favours Mr Museveni and the army of supporters of the ruling NRM is driven by the fact that the EC is appointed by Mr Museveni. The feeling is that it can only gain a measure of independence and objectivity if the powers to appoint it are taken out of the hands of the President and vested in another organ, or that it be constituted through an inclusive and transparent process in which the public and civil society, and not the government, should take the lead.
Civil society organisations have always urged the government to borrow a leaf from neighbouring Kenya, where the Independent Electoral Boundaries Commission (IEBC) organises and manages elections. Under the IEBC Act, the president is required to, within 14 days of a vacancy arising in the commission, appoint a selection panel comprising a chairperson and eight members drawn from distinguished professionals in the private sector or public service with relevant expertise.
The panel is required, within seven days of its convening, to invite applications and publish the names of all applicants. It then shortlists and conducts interviews. The panel then selects three persons qualified to be appointed as chairperson and 13 persons qualified to be appointed as members of the commission and forwards them to the president whose selection must be approved by parliament. Such an elaborate process, it is argued, will strengthen the EC’s integrity and cause Ugandans to regain faith in the institution.
Lack of faith
That Ugandans have very little faith or trust in the Commission is not lost on Justice Byabakama. He told Sunday Monitor in a previous interview that one of the things the Commission was grappling with was the negative perception that sections of the citizenry have about it. ‘Some of the stakeholders have an unnecessary negative perception of the Commission. However much we endeavour to be transparent, they remain suspicious of our conduct and activities,’ he said.
Back then, he argued that matters were being complicated by the fact that the Commission’s accusers were not stating what it was that had caused them to have a negative attitude about it. ‘I expect any political party or individual that has problems with the Commission to approach us and say, ‘Electoral Commission, we have a problem with you’. We expect them to come forward if there are matters that pertain to the overall work or execution of the mandate of the Commission. It is not for us to go and say, ‘Do you have a problem with us? Can you come and we talk?” Justice Byabakama said.
Fears
It is highly doubtful that this latest order by the army and the Commission will help make the public have more faith in the Commission or even be more open to approaching it. It is actually bound to make the public more suspicious of it. One of the biggest fears has been that the army and the EC are ordering the public to stay away for purposes of facilitating electoral malpractices that will disadvantage the Opposition. Those fears are not without basis. It should be remembered that electoral malpractices, especially multiple voting, ballot stuffing and underage voting, have been a constant in all election petitions since 2001.
These were some of the grounds that NUP brought up when it challenged Mr Museveni’s 2021 election victory, that there had been cases of multiple voting and ballot stuffing in many parts of the country. If vote stuffing, multiple voting and underage voting could still take place even when the voting public was around, what will happen when it is away? That is the question the Opposition is asking. Those fears are now made even bigger by Justice Byabakama’s comments about voter protection as a whole.
‘Voter protection is alien to the electoral laws. It is not known. You have your agents. If you want vote protectors, your agent can play that role, but do not give people tags or jackets with the inscription ‘vote protector for candidate so and so’… And I am saying it unequivocally, that anyone who comes masquerading as a vote protector at a polling station on that identity or concept is not known in our electoral laws is not acceptable. They are bound to be arrested,’ he said.
Contradiction
It is difficult to understand where the latest directive is coming from because until now, officials of the ruling National Resistance Movement (NRM) have always taken pride in what they have always described as transparent electoral processes. Dr Chris Baryomunsi, the minister for ICT and National Guidance, said in a previous interview with the Sunday Monitor that voting processes are so transparent that stakeholders can tell in real time and with certainty who has garnered what at the different polling stations.
‘The voting is in the open, people come, and they vote. At 4pm, they close and they count when everybody is there, and they record them. Everybody in their village knows how they voted at their polling station. They know that at this polling station, Museveni got this, Besigye got the other. If Besigye was the winner, people at a particular polling station would know,’ Dr Baryomunsi said. The fear now is that the directive by the army and Justice Byabakama will remove the little window of transparency that has been around the country’s electoral processes. ‘For us to have peaceful elections that are acceptable and that people trust, there must be a transparent method through which results are transmitted,’ argues Ms Ahimbisibwe.
Is anyone in the army and at the Commission listening?