By Amandla Neumbe
A leaked report on the five proposed electoral reforms tabled by Government has showed that Lawmakers on the Legal and Parliamentary Affairs Committee have recommended to Parliament to reject the proposal by Government to ban MPs and presidential aspirants from contesting as independent candidates.
In response to recommendations by Supreme Court in the election petition by former Premier Amama Mbabazi Attorney General, William Byaruhanga in July 2019 tabled five bills including; The Presidential Elections (Amendment) Bill, 2019, the Electoral Commission (Amendment) Bill, 2019, the Political Parties and Organisation (Amendment) Bill, 2019, Parliamentary Elections (Amendment) Bill and the Local Government (Amendment) Bill, 2019.
Presidential Elections Amendment Bill 2019 proposes in Clause 3 to insert sections 9A dealing with eligibility of an independent person to stand in a President elections.
The Bill proposes that a person who intends to stand for election independent of a registered political party or organisation must have ceased to be a member of a political party or organisation and has either ceased to be a member of a Political party or organisation twelve months before nomination day or has never been registered as a member of a political party or organisation.
The provision further requires that an independent candidate shall be taken to have ceased to be a member of a political party or organisation if that person has not complied with the constitution, rules and regulations of the political party or organisation to which he or she belonged, that relate to cessation of membership of that political party or organisation, and was discharged by the political party or organisation.
The Legal Committee highlighted that in analyzing this proposal, it is important to consider the effect it will have on Articles 1, 21, 29 (1) (e), 72 (4) and 102 of the Constitution and section 3 (2) of the Political Parties and Organisations Act.
The Committee argued that these provisions collectively and individually guide and guarantee the enjoyment of rights of a person standing as a presidential aspirant independent of a party or organisation.
The Constitution, in Article 72 (4) grants and guarantees a person’s right to stand for election as a candidate independent of a political party or organisation. The same constitution commands that all persons in Uganda are equal before the law in all spheres of political, economic, social and cultural life and in every other respect and direct that such persons must enjoy equal protection of the law.
Other than the provisions of Article 102 of the Constitution, the Constitution does not impose any additional requirements on a person intending to contest for election as President and does not discriminate against such persons whether independent or party sponsored.
The Constitution guarantees a person’s right to associate with others and the only limitations imposed on such a person must be demonstrably necessary in a free and democratic society as prescribed in Article 43 (2) (c) of the Constitution.
The debate on the report was delayed following a request by Minister for Justice and Constitutional Affairs, Ephraim Kamuntu who asked Speaker Rebecca Kadaga time to allow him familiarize with contents of the bill, because he had just assumed the docket from his predecessor, Kahinda Otafire following a cabinet reshuffle by President Museveni recently.
When the Committee reviewed the proposal made in the Bill, the MPs identified a number of controversial discoveries making the bill susceptible to being challenged in the Courts of law.
The Committee argued that whereas the above provision may be well intentioned, the identified issues may collectively and individually be challenged because the Constitution does not impose any specific limitations on a person intending to stand in a presidential election other than those that apply generally to all persons in Uganda, irrespective of their political affiliation.
The proposal to require an independent candidate to only be eligible to stand in a presidential election twelve months after ceasing being a member of a political party or organisation before nomination day is foreign to the Constitution as an eligibility criteria is said to infringes on the right to association as guaranteed under the Constitution.
The report noted, “Article 29(1) (e) of the Constitution guarantees a person’s right to associate with others and it commands that every person shall have a right to freedom of association which shall include the freedom to form and join associations or unions, including trade unions and political and other civic organisations.”
The Bill, in prescribing the conditions which must be satisfied by a person to stand as an independent candidate, may have inadvertently infringed the rights of association of a Presidential aspirant, which provision particularly infringes on the right to association by requiring a person to be eligible to stand as independent candidate if he or she has ceased to be a member of a political party or organisation twelve months before nomination day.
The provision further infringes on the right to association in so far as requiring that a person ceases to be a member of a political party or organisation if that person is discharged by the political party she belonged.
The Commiittee warned, “The above provisions will have the effect of forcefully conscripting a person to remain a member of a political party against his or her wishes contrary to the Constitutional guarantee of the person’s right to association. It should be noted that section 3 (2) of the Political Parties and Organisations Act 2005 guarantees a person’s right to form or join a political party or his her choice.”
The Legal Committee stated that association with political parties is voluntary in nature, and no individual should be forced to join, remain or belong to any association against their will.
The Committee said that same right is re-echoed in Article 10 of the African Charter on Human and Peoples Rights and Article 20 of the Universal declaration of Human rights which jointly require that a person shall not be compelled to belong to an association. This now forms international best practices that Uganda must respect.
In another discovery, the Committee pointed that the proposal infringes on Article 21 (1) of the Constitution, which deals with equality before the law and commands that all persons are equal before the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.
The provision, especially Clause 9A (a) which requires that a person should have ceased being a member of a political party or organisation twelve months before nomination day might infringe on Article 21 (1) in so far as imposing additional qualification requirements which do not apply to any other person other than an independent person.
The Committee pointed out that whereas an independent candidate must have ceased being a member of a political party or organisation twelve months before nomination day in order to participate in Presidential elections, an independent Member joining a political party qualifies immediately to stand in the same elections without hindrance. This differential application of the law contravenes Article 21 of the Constitution.
The provision also imposes additional qualifications on a person intending to stand as a candidate for president beyond those prescribed in Article 102 of the Constitution.
The proposal therefore to include a unique qualification for independent candidates as proposed in the Bill not only amend Article 102 by infection but expands the provisions of Article 102 unlawfully.