By Mukalazi Deus Mubiru
On Wednesday 18th March 2020, the President of Uganda addressed the nation on the issue of COVID19. By then Uganda had not registered a single case. Subsequently, the Public Health (Control of Covid-19) Rules as gazetted on 24th March 2020 outline a number of measures and guidelines to be followed in a bid to contain the outbreak of the pandemic. The guidelines mainly target control of public gatherings and emphasising social distancing. All manners of activities that bring people together were henceforth banned until 18th April 2020. Rule 9(1)(e) of the rules bans all public meetings, including rallies, conferences and cultural related meetings, until 18th April 2020.
Subsequent presidential addresses came with different directives resulting into a lock down where only essential service providers and businesses are allowed to operate and movement of people restricted. On Tuesday 14th April 2020, the President extended this lock down by another 21 days meaning the status quo remains until 5th May 2020.
The COVID19 outbreak in Uganda and the subsequent measures taken to manage the disease happen at a time when Uganda is preparing for general elections. The Electoral Commission had issued a road map which goes all through to February 9th, 2021. The lock down has affected the execution of the road map and some activities like the election of Special Interest Groups which were to happen in April 2020 have been postponed already.
Neither the President, nor the Electoral Commission have commented about the fate of the 2021 general elections. Sections of the media have reported that the Inter Party Dialogue (IPOD) has asked government to start the debate on the issue of postponing the 2021 elections. Perhaps the boldest move on the issue came from two, legislators representing Uganda at the East African Legislative Assembly Paul Musamali and Denis Namara, who on Wednesday 8th April 2020 urged government and the Electoral Commission to consider postponing the forthcoming general elections from 2021 to 2023. The justification for this proposal is more economic than political according to the proponents who argue that the money that would be spent on elections should instead be used to resuscitate the ailing economy. And apparently a section of the legislators warmed up to the idea.
A number of legal commentators and politicians seem to argue that general elections in Uganda especially Presidential elections must happen as planned and that our constitution does not provide for an extension. However, a closer look at the constitution and reading various provisions indicate that it’s possible to extend elections beyond May 12th, 2021 when the current tenure of President expires, only that the President must step aside. Article 105(1) provides for President elected under the constitution to hold office for a term of five years and the extension of this tenure can only be done through a referendum as per Article 260(1)(f). Conditions that would necessitate extension of presidential elections cannot allow a referendum to be held. So, the option of extending the President’s term of office is out of the question. It therefore means, the currentPresident cannot serve beyond 12th May 2021 without causing a constitutional crisis.
The above scenario does not mean that elections can’t be extended beyond the current tenure of the President though. The constitution under Article 104(7) had envisaged a situation where the term of the President may expire, and we have no new elected President much as the scenario there is different from the current crisis of an epidemic. Under 104(7) the circumstance would have been if Presidential elections are successfully challenged twice. However, the same provision can be adopted to the current situation. And in that case the Speaker of Parliament would perform the functions of the office of the President until a new President is elected and assumes office. According to Article 109(9) the whenever the Speaker assumes office under such an arrangement, a presidential election shall be held in accordance with Article 109(2) which provides for elections to be held within six months. What the constitution envisaged is that a country can be without a substantive President but under no such circumstances would a country be without parliament.
For the above scenario to happen, the President has to announce a state of emergency as per Article 110(1) and parliament can keep extending it under clause 3 of the same article. Parliament will have to extend its tenure as per Article 77(4) which provides that where there exists a state of war or state of emergency which would prevent a normal general election from being held, parliament may, by resolution supported by not less than two-thirds of all members of parliament, extend the life of Parliament for a period not exceeding six months at a time. Once that is done, it would fill the gap that may arise should the President’s term expire before elections. Then parliament exercising powers under Article 103(3)(d) will determine the period within which the elections shall be held. The extension period can only be for six months at a time but for as long as the conditions subsist this can be done for infinite times. It’s therefore not possible, at least constitutionally, to announce the extension of the 2021 elections to 2023, at once.
The President has against the advice of the Speaker and another unnamed top Minister as was reported in the media, refused to take the option of announcing a state of emergency and instead chose to work under the Public Health Act. It’s inconceivable that he would do the same in the near future. This is partly because a declaration of state of emergency takes away the powers of the President and revoking it requires parliamentary approval. The thought of an extension that will see the President temporarily relinquish power to the Speaker is something that President Museveni is not likely to allow and therefore the elections will happen as planned, however shabby, not because of lack of legal framework to have them extended but largely for political reasons.
Mukalazi Deus Mubiru
Research Associate, Democracy and Rule of Law
Great Lakes Institute for Strategic Studies (GLISS)