By Mulengera Reporters
In her 10 page judgment dated Wednesday 17th June and written in very basic English, Justice Lydia Mugambe has inadvertently exposed the fact that Justice Simon Byabakama (her senior) hasn’t adequately used his legal knowledge and background (as Court of Appeal Justice) to help the EC to become a better Commission that fully complies with legal requirements and provisions.
While granting public-spirited citizen Steven Kalali’s application, filed under Article 50 of the Constitution, seeking to enforce the rights of prisoners and Diaspora Ugandans to vote, Justice Mugambe in many ways exposes the ineptness of the Electoral Commission. Renowned for writing her judgments with extreme clarity and simplicity, Justice Mugambe finds that the continued deprivation of the right vote for these category of citizens amounts to the EC (which has Shs600bn for 2021) violating Constitutional and other legal provisions to the detriment of millions of Ugandans scattered in both Diaspora and prisons.
The incorruptible Justice Mugambe lists some of these violated legal provisions to include Article 59(3) of the Constitution that makes it a duty for the EC and the entire Ugandan state to take all possible steps to ensure all Ugandan citizens aged 18 and above are facilitated and enabled to participate in elections or even referenda as regularly as possible. Insisting that “statutory rights” such as those relating to enfranchisement of citizens must always be “liberally and broadly” interpreted, Justice Mugambe finds that deprivation of voting rights to the two categories of citizens would amount to violating article 21 of the Constitution that demands equality and protection of all citizens against any form of discrimination (in this case) based on their social status.
She observes that the Electoral Commission, currently led by a whole Court of Appeal Justice (our own emphasis) has had enough time organizing several major elections under the 1995 Constitution (1996, 2001, 2006, 2011 & 2016) implying that the EC should by now be able to advise or even push the state on the necessary legal reforms and amendments that ought to be enacted to ensure that all the relevant Constitutional provisions are adhered to in the way it organizes elections while ensuring maximum enjoyment of the franchise rights by all citizens as is required under Article 59(3) & (4).
The above provisions require the state, of which EC is part, to undertake all the steps aimed at facilitating all citizens (including diaspora and jailed ones) to freely participate in elections. This is important because, as Justice Mugambe rightly asserts in her judgment, Article1(4) of the same Constitution demands regular free and fair elections the same being the only way all citizens (including prisoners and diaspora ones) can participate in determining how they are to be governed and by whom. The same Article 1 broadly asserts that all power belongs to the people and actually the only way they can exercise that power is through participating in elections and referenda regardless of their status in life (be they in prison or diaspora).
Justice Mugambe also faults the EC (remarkably continuing to be led by a senior judge and former DPP Byabakama) for continuing to deprive the two citizen categories of voting rights well knowing the same contravenes objective no. II (i) under the National Objectives & Directive Principles of State Policy which (as we all ought to know) bestows enforceable rights because its part and partial of our Constitution. This specific objective requires the state to encourage all citizens to actively participate in elections and politics of their country. While referencing on Articles 43 and 44 which respectively provide for the general limitation principle (basically denial of rights in public interest or national security) and derogation of rights, Justice Mugambe finds that deprivation of voting right to jailed Ugandans and diaspora ones can simply not be demonstrably justifiable in any democratic society. That franchise is a protected right that must be shielded (as opposed to being deprived) even in the context of Article 43 of the Constitution. The wording of Article 59, regarding the duty imposed on the state through the EC, is mandatory because the phrase “shall” is used to imply the EC is mandatorily required to take all necessary steps to ensure all citizens are facilitated and enabled to participate in voting.
Stating that the continued deprivation of the franchise rights can’t be justified anywhere, Justice Mugambe references on other African jurisdictions (not even Europe or North America) where states ensure enjoyment of voting rights is jealously protected even when that has to be at its own expense. She cites examples of these jurisdictions to include South Africa, Ghana, Kenya, Nigeria and Zambia. The implication is that the Byabakama-led EC should have benchmarked on any of these countries to ensure the same is replicated here.
Justice Mugambe also references on some of the international instruments which Uganda has for long been domesticating making it obligatory for the state to ensure voting rights for all citizens are protected at all times. Some of the instruments she refers to, and Uganda indeed ratified, include the International Covenant for Civil and Political Rights (ICCPR) and the African Charter on Human and People’s Rights (ACHPR). The judge ably illustrates that Uganda’s Article 59 derives from Article 25 of ICCPR and Article 13 of ACHPR both of which are binding to all African countries that ratified the two instruments. Yet that isn’t all. Article 21(2) of the Uganda’s Constitution, which the EC stands accused of violating, directly derives from Article 2 of ICCPR and Article 2 of ACHPR. So the judge logically concludes that by preventing diaspora Ugandans and those in prison from participating in elections, Byabakama’s EC blatantly violates not only Ugandan laws (the Constitution etc) but also international instruments as well.
Mugambe also rightly wonders why the EC, which is clearly duty bound under Article 59 and sections 18 & 19 of its own Act, didn’t take advantage of the 2006 enactment process of the Prisons Act to ensure the resultant law was adequately inclusive as to ensure members of the Ugandan diaspora and prisoners (both remand and convicted) are facilitated to exercise their right to vote that is clearly guaranteed in the Ugandan law and international instruments. One wonders why a deeply knowledgeable man on legal matters like Simon Byabakama had never found time to reflect on these basic legal provisions since replacing Eng Badru Kiggundu as Chairman for EC. Despite all the illegalities she faults EC for committing for all these years since 1996, the judge doesn’t direct costs implying parties must meet their own costs. She directs the EC to immediately comply with its obligations under Article 59(3) by beginning to register jailed Ugandans and those working/living abroad. For unknown reasons, the Attorney General, despite being sued as first respondent, never participated in defending government against Mr. Steven Kalali’s precedent-setting application. (For comments on this story, get back to us on 0705579994 [whatsapp line], 0779411734 & 0200900416 or email us at [email protected]).
