The folly of being law abiding

By Admin

One of my first tests as an advocate in electoral matters was in the case of Byanyima Winnie vs Ngoma Ngime way back in 2001.

Kiryowa kiwanuka 350x210

OPINION

By Kiyowa Kiwanuka

Many people, including Members of Parliament, have argued that the decision of the Electoral Commission to set timeframe for revision and updating of the National Voter's Register plus a cut-off date and /or deadline for the registration of eligible voters as an aspect of the electoral process is illegal, irrational and unreasonable.

None of the proponents of this assertion have shown illegality, irrationality and unreasonableness of the Electoral Commission's actions or decision being complained about.

It has been widely and loudly argued that the Electoral Commission in setting the 11th day of December 2019 (or any other date) as a deadline for registration of all eligible voters is illegal, irrational and unreasonable and will disenfranchise many eligible voters and block those wishing to contest as candidates in different positions, especially those who will have turned 18 years after the 11th day of December, 2019.

Let me attempt to but the record straight. The Electoral Commission has simply acted in accordance with the commands of the law.

One of my first tests as an advocate in electoral matters was in the case of Byanyima Winnie vs Ngoma Ngime way back in 2001. I lost the case but learnt a great deal.

The judge found and I agree that;

I do not think it competent for any court (and in this case anyone for that matter) to proceed upon the assumption that the legislature has made a mistake.

Whatever the real fact may be, I think a court of law (and in this case everyone) is bound to proceed on the assumption that the legislature is an ideal person that does not make a mistake. If the words of the Act are clear, you must follow them even though they lead to a manifest absurdity.

The learned judge went on to summarise the electoral process as follows:
"the context of the law also reveals that the electoral process does not move along a dual track. Nor does it go forward and backwards. It is clear that it moves in a single direction and along a single track: Once one segment is completed, the process moves on to another segment.

Those segments or sets of election activities, e.g. voter registration, nomination of candidates, campaigning, voting, counting of votes and announcing of the results and election petitions, are all well demarcated by the law.

Indeed each segment is contained in a well numbered and different part of the Act. It is clear that none of them flows into other. The law does not provide for any overlapping.

There will, for instance, be no nomination until the voters are registered. There will be no official campaigning until the nomination of candidates is over. There will be no counting of votes until the voting period is over.

There will be no declaration or the gazetting of the name of the winning candidate by the Election Commission until the vote counting process is over in the particular constituency of the particular Member of Parliament. That, I think, is a singular characteristic of the electoral law of Uganda".

(The highlight are my additions)

The above excerpts from that decision of the court should always be kept in mind when attempts are made to understand our electoral process.

The Electoral Commission is by law required to register and update the National Voters Register to a date appointed by statutory instrument as a date on which updating shall end.

The Electoral Commission Act provides that, when updating the voters register, the commission shall update it to a date appointed by statutory instrument as the date on which the updating shall end. It is simply absurd for one to assert that the public body's compliance with the law is illegal.

As some students of Uganda's or any other electoral process will agree with me, the National Voters Register cannot be updated endlessly without deadline since electoral activities move in a single track and do not overlap each other.

The decision of the Electoral Commission is not only legal but is also rational and reasonable in the circumstances.

The electoral road map has been issued and by the time of nomination of candidates the Electoral Commission must have carried out among other things the following activities; gazette and publish polling stations, holding of Regional stakeholders workshops on the display of the National voters register and special interest groups registers, display of the National voter's register at each polling station, display of Special interest Groups voters register in each village, display of Tribunal recommendations at each parish, gazette and publishing candidates' nomination dates and venues for Presidential, Parliamentary and Local Governments elections and nomination of Village Special interest groups committee candidates (OP, PwD, Youth).

We must all understand that all these activities have to be carried out after the voters' registration and update.

Further still, the Electoral Commission is commanded by law to transmit an electronic copy of the register to the players in time after nomination but before polling and the Electoral Commission must print and supply the register to its returning officers upon which to nominate candidates which requires the Register.

Since there is someone becoming 18 years of age every day, from the arguments being raised, the only solution is to keep the registration of voters for the election open until the eve of voting day or indeed remove the cut-off altogether.

Unfortunately, this will be illegal and will have absurd results as we shall not have a voters register. The reality is some persons who have attained 18 years will not be able to participate in the election. That is not disenfranchisement as this only applies to person eligible to vote as at the cutoff date who are unlawfully denied that right.

It is therefore, legal and only prudent to have the cut-off date.

We have many a time taken pride in asserting our respect for the rule of law. Let me hasten to remind all and sundry that the Constitution commands that the Electoral Commissions shall in the performance of its functions be independent and not subject to the direction or control of any person or authority.

The utopian proposals cannot be achieved.


(The writer is a lawyer)