Mukalazi Deus Mubiru
Research Associate, Democracy and Rule of Law
Great Lakes Institute for Strategic Studies (GLISS)
On Tuesday 16th June 2020, the Electoral Commission (EC) launched a revised road map for the 2021 general elections after losing approximately three months due to the outbreak of Covid19 pandemic in Uganda and the control regulations there after that saw a freeze on all electoral processes.
The revised road map fits whatever was supposed to be done within the period between 22nd June 2020 to 8th February 2021 when all elections will have been held and all elective positions filled. This means that some of the key electoral processes that would be undertaken under ordinary circumstances have either been suspended or ignored like consultations for aspiring presidential candidates as per S.3(2)(d) of the Presidential Elections Act and giving each presidential candidate enough time of at least one day to campaign in each district as per Section 21(1) of the same Presidential Elections Act.
Stakeholders in the elections space especially political parties and those vying for political offices have received the revised road map with different reactions. Whereas the ruling National Resistance Movement (NRM) has positively received this, majority of players in opposition have criticised the road map and termed it illegal and unconstitutional. Some players like Presidential Aspirant, Joseph Kabuleta, have gone ahead to issue a notice of intention to sue should the EC go ahead with the road map. The biggest controversy seems to be on the issue of digital campaigns where candidates will not be expected to hold any public rallies because of the prevailing Control of Covid19 Regulations and will instead be expected to reach out to their voters through other ways including traditional media and social media.
The EC insists it acted within the law and within its powers to issue the road map. The EC Spokesperson clarified that they are yet to develop the guidelines and that the different stakeholders who claim they were left out of the process and never consulted still have a chance to share their views on how to best deliver a free and fair election within the shared road map.
Without a state of emergency in the country, it must be noted that the EC has no excuse not to organise and deliver the elections. The only situation where the thought of extending elections can arise is if the country had been under a state of emergency. A state of emergency can only be declared by the President in consultation with the cabinet as per Article 110(1) of the Constitution. Since the Government chose to handle the pandemic under Sections 11 and 12 of the Public Health Act, it is difficult for the EC to think of extending the elections. And inaction on EC’s part would lead to a constitutional crisis. Calls for extension of elections should not be directed at the EC but rather at Cabinet and the President plus the legislature.
True, the revised road map may be unreasonable and unrealistic but general life under the Covid19 has not been normal. Although the constitution under Article 1(4) gives power to people to express their will and consent on who should govern them through regular, free and fair elections of their representatives, and the EC is enjoined to deliver the same as per Article 61(1)(a), the prevailing circumstances of the covid19 pandemic make it difficult to do so without infringing on certain rights just like other rights have been curtailed during this period.
Whereas the law provides for delivery of a free and fair election, the same law provides for the delivery of the same within a certain time framework. Article 61(2) of the Constitution enjoins the EC to hold Presidential, general parliamentary and local government council elections within the first 30 days of the last ninety days before the expiration of the term of the President. Some provisions like Article 105(1) makes the extension of the tenure of office of the President and its extension would require a referendum as per Article 260(2)(f). Such provisions make it difficult for the EC to extend the time.
Section 50 of the Electoral Commission Act gives the EC special powers to bend the laws under certain circumstances. Clause 1 states, “Where, during the course of an election, it appears to the commission that by reason of any mistake, miscalculation, emergency or unusual or unforeseen circumstances any of the provisions of this Act or any law relating to the election, other than the Constitution, does not accord with the exigencies of the situation, the commission may, by particular or general instructions, extend the time for doing any act, increase the number of election officers or polling stations or otherwise adapt any of those provisions as may be required to achieve the purposes of this Act or that law to such extent as the commission considers necessary to meet the exigencies of the situation. Clause 2 adds, “For the avoidance of doubt, this section applies to the whole electoral process, including all steps taken for the purposes of the election and includes nomination.” With this section of the law, coupled with Article 67(1) of the constitution, which requires that elections are held at times fixed and notified in advance to the public. To the extent that the road nap and elections of the EC are legal, that is not in contention.
There is the argument of the non-consultation of stakeholders. Article 61 of the constitution and Section 13 of the EC Act provides for the independence of the commission and it is not subject to the direction or control of any person or authority. However, under the doctrine of legitimate expectation. A legitimate expectation is said to arise as a result of a promise, representation, practice or policy made, adopted or announced by or on behalf of government or a public authority.” Therefore, it extends to a benefit that an individual has received and can legitimately expect to continue or a benefit that he expects to receive. Procedural legitimate expectation refers to the expectation of an individual that he has a right to a certain procedure, such as the right to a hearing, as a result of the behaviour of the public body. Different stakeholders argue that the EC has always consulted them on matters of election and therefore they should have been consulted on this revised road map.
However, the doctrine of legitimate expectation is subject to certain conditions and considerations one of them being whether it would be unlawful for the authority to frustrate such an expectation. Upon reviewing a claim for the protection of a legitimate expectation against a public authority’s decision, courts will deliberate over three key considerations: the situations and circumstances in which legitimate expectations arise, instances in which it would be unlawful for the public authority to frustrate such an expectation, and the remedies that would be available to the aggrieved party if it is found that the public authority had unlawfully frustrated a legitimate expectation.
In view of the existing covid19 pandemic, the EC, strictly focusing on legal aspects has all the powers to announce and follow the revised road map. As rightly put by Professor Clement Fatovic, in his paper, “Emergencies and rule of law,” as governments have come to rely increasingly on various legal tools to handle emergencies, scholars have devoted more attention to the ways that lawful but extraordinary exercises of power also threaten the rule of law.The trend toward the legalization of extraordinary powers in times of emergency, along with the increasing normalization of emergency powers in ordinary circumstances, reveals challenges to the rule of law that are arguably every bit as worrisome as the lawless exercises of power that have alarmed thinkers for millennia. Rather than approach this from a legal position, those who feel the roadmap is unreasonable and unfair should consider a political solution rather than a legal one because it’s a political problem.