Karooro Okurut

THE call by sections of the opposition for the resignation of the Electoral Commission (EC) on grounds that it is not independent and cannot deliver a free and fair election, need to be taken with a pinch of salt. The major premise on which the claim is anchored is that because the President is the one empowered by the Constitution to appoint members of the EC that makes it literally “an NRM EC”.

They are saying the opposition too should be represented on the EC. The Constitution is very clear on this. Although the President nominates members of the EC, he can only appoint them if Parliament approves his choices. The final decision therefore lies with Parliament and not the President.

On its part, Parliament has proved equal to the task, rejecting several nominees for Cabinet, Judiciary and various commissions as being unfit, even after the President himself had shown confidence in them.
If Parliament had found cause to throw out the EC nominees when they were brought before the House Appointments Committee, they would have done so.

The recently concluded Mbale Municipality by-election left the opposition with egg on their faces. They cried foul long before a single ballot was cast, and declared that the poll had already been rigged in favour of the NRM. They condemned the EC as unable to deliver a free and fair ballot. Then they won the election hands down and since then they have run out of explanations.

For good measure, the NRM set a decent example, and came out to congratulate the winner – something none of the opposition members ever so much as dreamt of doing. Going by their arguments, it means that the FDC winner came into office illegitimately. How come then the opposition accepted the victory when according to them the EC cannot deliver a free and fair election? So it then follows that whenever the NRM wins, according to the opposition, the election has been rigged and the EC should be disbanded. And whenever the NRM loses the goalposts are shifted. The same pattern has been repeating itself in the courts of law. Whenever the opposition win, the courts are independent. And when they lose, the same courts are biased, incompetent and mere arms of the Executive.

Furthermore, it should be remembered that this Constitution has just been amended – just five years ago. Most of those saying the EC should be disbanded were present at that amendment and had the opportunity to float a proposal to do away with the current constitutional provisions regarding the role of the President in appointing the EC. Curiously, they did not even think about it. Why are they coming up with the idea at this point in time? What has changed since then?

It should also be noted that the practicality of the suggestion is simply out of question as it would necessitate amendment of the Constitution – something we surely ought not to go into, just 10 months to the election. That would also mean possibly amending certain Acts of Parliament which could be affected by the constitutional amendments and every statutory instrument made thereunder.

The framers of the Constitution saw wisdom in providing for the appointment of the EC in the supreme law of the land. If those who object had been wiser, they would have insisted that Article 60 of the Constitution simply provides that Parliament shall make a law regulating the appointment and operations of the EC. An Act of Parliament is far easier to amend than the Constitution. Or better still that Electoral Commission Act would have been made to provide that the minister shall by Statutory Instrument provide for the appointment of members of the EC. That would have made it even much easier because amending a Statutory Instrument is even far easier than amending an Act of Parliament.

But let us consider the proposal of the opposition very closely. They say we should have an EC that is representative of all shades of political opinion. The argument is that the current EC belongs to NRM and that the opposition should be brought on board for the EC to be balanced!
Now, there are 35 registered political parties that are known to the EC. Should we have all of them or only some of them represented? And if so, what criteria should be used in determining which party should send a representative and which one should not?

And even then, the moment party representation becomes the key criterion for appointment of commissioners that would immediately turn the EC into a partisan commission. They would no more be technocrats but a bunch of politicians who would probably spend more time politicking than delivering the service that they are supposed to.

The beauty of appointing technocrats is that their fidelity is only to quality and nothing else. Their focus is on delivering a free and fair election rather than caring what which party thinks. And this EC in particular has proved that when the chips are down, they can stand their ground for what they believe to be correct.
Those with keen memories will recall that there was controversy aplenty in 2005 when time for nomination of presidential candidates was approaching and Forum for Democratic Change President Dr. Kiiza Besigye was facing rape and treason charges in the courts of law.

The Attorney General – the Government’s chief legal adviser submitted that Dr. Besigye was not fit to stand for president since he was facing serious criminal charges. But EC chairman Dr. Badru Kiggundu stood his ground and declared that there was no law that barred Besigye from being nominated as he had not been convicted of any offence.

That is evidence of a Commission that is independent and certainly not subject to the control of any person or authority.
Rather than wasting time calling for the resignation of the EC, we should be focusing on the things that make it difficult for the EC to perform its duties.

First is the late passing of electoral laws – something that has proved adept at frustrating the operations of the Commission. If due laws were always passed in time, this would greatly enhance the possibilities of the EC doing well come election time.

Secondly is the provision of due finances in time. Almost everything that the EC does or carries out has a budget attached to it. They cannot be expected to be as efficient as we would love them to be when, as has often been the case in times past, monies are released late.

Thirdly, as explained above, Parliament is the most credible check and balance against any possible excesses of the appointing authority.