EALA Elections: Appointments or elections?

By Richard Golooba

Elections are a formal decision-making process by which a population chooses an individual to hold public office and has been the usual mechanism by which modern representative democracy has operated since the 17th Century.

Elections may fill offices in the legislature, sometimes in the executive and judiciary, and for regional and local government. This process is also used in many organisations, clubs to voluntary associations and corporations.

Chapter Nine in EAC Treaty on the East African Legislative Assembly, Article 50 on Election of Members of the Assembly states that:

“The National Assembly of each Partner State shall elect, not from among its members, nine members of the Assembly, who shall represent as much as it is feasible, the various political parties represented in the National Assembly, shades of opinion, gender and other special interest groups in that Partner State, in accordance with such procedure as the National Assembly of each Partner State may determine”.

Democratic Party (DP) of Uganda petitioned the regional court to block the election of Ugandan representatives to the East African Legislative Assembly (EALA).

DP argued that if the rule on a party’s numerical strength in Parliament remained unchanged it will not have a chance of sending a representative to the EALA in the upcoming elections for EALA members.

East African Court of Justice ruled that no elections of Uganda representatives to the East African Legislative Assembly (EALA) should take place until rules followed in the election process are amended.

According the Democratic Party (DP) legal adviser, Mukasa Mbidde, court slammed an injunction against the Attorney General of Uganda, East Africa Community Secretary General and EALA not allow new Ugandan MPs to take oath.

This came after the counsel for the applicant, Justin Semuyaba, sought an injunction on the election of Ugandan members to the Assembly, submitting that the rules and procedures of the Parliament of Uganda 2006, on election of members to the EALA did not conform with article 50 of the Treaty of establishment of the East African Community.

On May 10, 2012 a full bench of the First Instance Division ordered that the Parliament and the Attorney General of the Republic of Uganda and East African Legislative Assembly (EALA) are restrained and prohibited from conducting and carrying out any elections of members to the EALA, assembling, convening, recognising, administering Oath of office or otherwise howsoever presiding over or practicing in the election of the representatives of Uganda and recognising of any names of nominees as duly nominated and elected to the EALA until the Rules 11(1) and Appendix B r 3, 10,11 of the Rules of Procedure of the Parliament of Uganda 2006 are amended by the Parliament of Uganda to conform to the provisions of Article 50 of the Treaty for the Establishment of the East African Community.

Delivering the judgment, Justices Busingye Johnston, Pincipal Judge, Stella Arach, Deputy Principal Judge, John Mkwawa, Judge, Jean Bosco Butasi and Isaac Lenaola, Judges, found and held that the Applicants, Uganda’s Democratic Party, have made out a case that the Rules of 2006 did not conform to the Treaty accordingly and they are entitled to orders that will restrain the Parliament of Uganda from conducting EALA elections unless and until they amend the rules.

The rules were declared null and void by Uganda’s Constitutional Court in 2008 because they contained, among other controversial provisions, numerical strength of the political parties in Parliament as a basis for representation in the EALA.

The Court said this does not conform to Article 50 of the Treaty which provides that representation in the Regional Parliament shall comprise, as much as is feasible, political parties, shades of opinion, gender and other special interest groups in each partner state.

The case against the secretary general EAC that he has failed to supervise the government of Uganda to ensure that the Parliament amends its laws to conform to Article 50 of the Treaty was dismissed with no orders to costs. The Court held that the conduct of the Republic of Uganda, in not moving to amend the Rules for four years, forced the applicants to seek its intervention and consequently condemned the Attorney General of the Republic Uganda to pay the costs of this Reference to the Applicants.

The Court also encouraged the EAC Secretariat to establish as a matter of administrative principle, a standard practice of following up on allegations of Treaty infringements and violations once it receives formal communication about them.

Phillip Mwaka representing the Attorney General Uganda, emphasised that Rule 11(1) of the Rules of Procedure of the Parliament of Uganda had been amended, but the Parliament is still working on amending Appendix r3 which omits consideration of other shades of opinion for the elections to be conducted under Appendix B r3 to conform to Article 50 (1) of the Treaty.

He added that EALA’s next Assembly is supposed to start June 4; therefore, the Parliament has to finish the process very fast, so as to have elections on time. Uganda’s Attorney General was represented by Christine Kaahwa, Principal State Attorney and Philip Mwaka, Principal State Attorney both from the Ministry of Justice and Constitutional Affairs, Uganda.

The Secretary General was represented by the Counsel to the East African Community, Wilbert T.K.Kaahwa.

Despite a court ruling on the formula of electing members to the East African Legislative Assembly (EALA), the parties in the House are still divided on how to share out the nine parliamentary slots Uganda has.

After a protracted debate, the opposition and the ruling National Resistance Movement (NRM) disagreed on the number of slots each party should take. NRM maintains that it takes six slots since it has the numeric strength in Parliament; the opposition demanded that the law entitled each party to a slot.

"Political strength should not take precedence here. We should all be treated equally. As far as the ruling is concerned, representation does not mean numbers. Whether few or many, we should all be represented," said Betty Ochan (Gulu district).

Opposition Attorney General, Abdul Katuntu warned Government to follow Article 50 of the EALA ruling to avoid embarrassment of Uganda at the regional assembly.

"We should not kill the spirit of the law and become an embarrassment in the region," said Ssebuliba Mutumba (DP).
The leader of opposition in Parliament, Nandala Mafabi also agreed that numeric dominance should not be used to allocate slots.

The Prime Minister, Amama Mbabazi who is also the NRM Secretary General said what the ruling party was doing was in conformity with the treaty and added that whoever wanted to challenge the action was at liberty. NRM caucus resolved to maintain six slots for NRM, the opposition two slots and one for the independents.

People interested in EALA should campaign and convince us that they can represent our interests and advance the foreign policy effectively.  Even in the recent elections not all NRM candidates got the same votes an indication that these are elections not appointments.