Electoral reforms are more rational than going to court
Mar 20, 2006
The election petitions season is with us once again. Many candidates who are convinced they should have been the winners in their respective polls are petitioning courts of law seeking nullification of the results on a multiplicity of grounds.
A learned friend With a historical perspective
Peter Mulira
The election petitions season is with us once again. Many candidates who are convinced they should have been the winners in their respective polls are petitioning courts of law seeking nullification of the results on a multiplicity of grounds.
According to one school of thought, when a court of law nullifies an election, the lines which separate the functions of the different branches of government under the system of separation of powers get blurred. Under this system, the functions of the executive, judicial and legislative branches of government are kept separate following a principle which was invented by the American forefathers.
The conduct of elections is the function of the executive and there is debate in academic circles abroad as to whether when a court of law is called upon to determine who received more votes in an election or perform such other chores which are strictly not judicial in nature, the courts are thus not performing an executive act.
Going to court, however, to challenge an election result on grounds of a malpractice which contravenes the law by government officers and others is in itself an aid to the democratic process because in a democracy courts of law exist to balance the interests of individuals and to check on the excesses and inadequacies of government which is one of the justifications for the principle of separation of powers.
The grounds for the various petitions are normally similar but Colonel Kizza Besigye’s petition provides a departure when it includes, in its complaints, one against the President accusing him of having used abusive language against his rivals during his campaign trails. Our electoral law restrains candidates from abusing others but in other countries such as Britain such abusive language is just a social issue. In 1964 during the elections which brought Harold Wilson to power while campaigning in the Marylebourne part of London, Mr. Quintin Hogg, Conservative, referred to his Labour opponents as “stark, starring bonkers†and although the public was outraged, the law did not intervene and Hogg as Lord Hailsham later went on to become Lord High Chancellor but he is best remembered by lawyers as the chief editor of the 4th edition of the seminal fifty-two volume Halsbury’s Laws of England.
Earlier in the 50s, a devout socialist Aneurin Bevan, had referred to conservative capitalists as “vermins†but the law did not take note. Sometimes, legal precepts do not match our expectations of social conduct. For example, for an owner of a dog which has bitten you to be held liable in a court of law you have to prove that it had bitten a person before it being a legal principle that a dog is entitled to a first bite.
In the case of an election petition where there is an allegation of vote stealing, the law requires the petitioner to prove that there was substantial stealing of the votes so as to affect the results. In other words, the law seems to give saccour to insubstantial stealing of votes! With this sense of the law in mind, one would have preferred to see the opposition parties spend more time developing legislative proposals which will do away with election abuses, if any. When Al Gore, a loser in the 2001 US presidential elections, realised that fighting in courts of law to wrestle the presidency from George Bush after being cheated in a manner which was obvious to all, backed off after he realised that his action was perpetuating national divisions and pent-ups which the elections had generated and instead his party chose to campaign for electoral reform.
A number of states in the United States have changed their electoral laws following the experience of 2001. In a number of cases relating to these petitions, the candidate himself may not have been guilty of any offence. Overstuffing of ballot boxes, crossing out of the register names which should have been there or having the dead appearing to vote are normally the work of overzealous officials and supporters in which the candidate himself may not have had a hand but it is the candidate and the taxpayers who have to foot the bill for a re-run who get punished when an election is nullified.
Stealing votes is an act of theft just like pickpocketing and it is unfair to punish one type of offender and not the other. Our elections in which the winner takes all, work injustice for voters whose candidates do not go through for in one sense they are disenfranchised which leads to the kind of pent-up emotions which we have witnessed of late. In the west, only Britain and the United States still use the take-all system but even there there is a gradual change to the system of proportional representation under which representatives are elected from multi-seat districts in proportion to the number of votes received. This system ensures that parties or candidates will have the percentage of legislative seats that reflect their public support.
There are various types of the PR system but the “list system†is more suitable for our country. Under this system, the voters select one party and its slate of candidates to represent them. If the party receives 50 percent of the votes it takes 50 percent of the seats and so on for the other parties in a descending order. In practical terms, if the law provides for one representation for every 20,000 people a district made up of 120,000 people would have six representatives in the legislature. If party “A†won 50 percent of the votes, it will take three seats and so on for the other parties. In an earlier article written in 2004 we put forward the following proposals for electoral reform:
The idea of constituencies should be abolished and be replaced by the district as the unit for electing representatives of Parliament.
Each MP should represent (or as the case may be) a minimum number of people set down in the electoral law say 10,000 and this will determine the total number of representatives per district. Thus if the district has a population of 30,000 people, it will be entitled to three MPs.
Candidature will be through political parties but independent candidates will also be allowed. A voter will have as many votes as the number of representatives from the district. This will enable cross-party voting for those who wish it. A voter will be entitled to spread his votes among the candidates standing or give them to one candidate or party. The first three or as the case may be, candidates with the highest votes will represent the district in Parliament.
Peter Mulira
The election petitions season is with us once again. Many candidates who are convinced they should have been the winners in their respective polls are petitioning courts of law seeking nullification of the results on a multiplicity of grounds.
According to one school of thought, when a court of law nullifies an election, the lines which separate the functions of the different branches of government under the system of separation of powers get blurred. Under this system, the functions of the executive, judicial and legislative branches of government are kept separate following a principle which was invented by the American forefathers.
The conduct of elections is the function of the executive and there is debate in academic circles abroad as to whether when a court of law is called upon to determine who received more votes in an election or perform such other chores which are strictly not judicial in nature, the courts are thus not performing an executive act.
Going to court, however, to challenge an election result on grounds of a malpractice which contravenes the law by government officers and others is in itself an aid to the democratic process because in a democracy courts of law exist to balance the interests of individuals and to check on the excesses and inadequacies of government which is one of the justifications for the principle of separation of powers.
The grounds for the various petitions are normally similar but Colonel Kizza Besigye’s petition provides a departure when it includes, in its complaints, one against the President accusing him of having used abusive language against his rivals during his campaign trails. Our electoral law restrains candidates from abusing others but in other countries such as Britain such abusive language is just a social issue. In 1964 during the elections which brought Harold Wilson to power while campaigning in the Marylebourne part of London, Mr. Quintin Hogg, Conservative, referred to his Labour opponents as “stark, starring bonkers†and although the public was outraged, the law did not intervene and Hogg as Lord Hailsham later went on to become Lord High Chancellor but he is best remembered by lawyers as the chief editor of the 4th edition of the seminal fifty-two volume Halsbury’s Laws of England.
Earlier in the 50s, a devout socialist Aneurin Bevan, had referred to conservative capitalists as “vermins†but the law did not take note. Sometimes, legal precepts do not match our expectations of social conduct. For example, for an owner of a dog which has bitten you to be held liable in a court of law you have to prove that it had bitten a person before it being a legal principle that a dog is entitled to a first bite.
In the case of an election petition where there is an allegation of vote stealing, the law requires the petitioner to prove that there was substantial stealing of the votes so as to affect the results. In other words, the law seems to give saccour to insubstantial stealing of votes! With this sense of the law in mind, one would have preferred to see the opposition parties spend more time developing legislative proposals which will do away with election abuses, if any. When Al Gore, a loser in the 2001 US presidential elections, realised that fighting in courts of law to wrestle the presidency from George Bush after being cheated in a manner which was obvious to all, backed off after he realised that his action was perpetuating national divisions and pent-ups which the elections had generated and instead his party chose to campaign for electoral reform.
A number of states in the United States have changed their electoral laws following the experience of 2001. In a number of cases relating to these petitions, the candidate himself may not have been guilty of any offence. Overstuffing of ballot boxes, crossing out of the register names which should have been there or having the dead appearing to vote are normally the work of overzealous officials and supporters in which the candidate himself may not have had a hand but it is the candidate and the taxpayers who have to foot the bill for a re-run who get punished when an election is nullified.
Stealing votes is an act of theft just like pickpocketing and it is unfair to punish one type of offender and not the other. Our elections in which the winner takes all, work injustice for voters whose candidates do not go through for in one sense they are disenfranchised which leads to the kind of pent-up emotions which we have witnessed of late. In the west, only Britain and the United States still use the take-all system but even there there is a gradual change to the system of proportional representation under which representatives are elected from multi-seat districts in proportion to the number of votes received. This system ensures that parties or candidates will have the percentage of legislative seats that reflect their public support.
There are various types of the PR system but the “list system†is more suitable for our country. Under this system, the voters select one party and its slate of candidates to represent them. If the party receives 50 percent of the votes it takes 50 percent of the seats and so on for the other parties in a descending order. In practical terms, if the law provides for one representation for every 20,000 people a district made up of 120,000 people would have six representatives in the legislature. If party “A†won 50 percent of the votes, it will take three seats and so on for the other parties. In an earlier article written in 2004 we put forward the following proposals for electoral reform:
The idea of constituencies should be abolished and be replaced by the district as the unit for electing representatives of Parliament.
Each MP should represent (or as the case may be) a minimum number of people set down in the electoral law say 10,000 and this will determine the total number of representatives per district. Thus if the district has a population of 30,000 people, it will be entitled to three MPs.
Candidature will be through political parties but independent candidates will also be allowed. A voter will have as many votes as the number of representatives from the district. This will enable cross-party voting for those who wish it. A voter will be entitled to spread his votes among the candidates standing or give them to one candidate or party. The first three or as the case may be, candidates with the highest votes will represent the district in Parliament.