The republic of uganda in the supreme court of uganda at kampala

Issue No.2. Non-compliance, with the Principles of the Act:

The second issue is whether the 2001 election of the President was not conducted in accordance with the principles laid down in the provisions of the Presidential Elections Act 2000. As I have already observed, Section 2 (2) of the Act stipulates that “the Commission Act shall be construed as one with this Act”, thus incorporating the principles laid down in the Commission Act into the Presidential Elections Act.

Mr. Mbabazi learned counsel for the Petitioner submitted that the principles of the Act are transparency, representation of a candidate at a Polling Station, the right to vote, the right to register, freedom to vote and values of a democratic society. The principles were laid down in Section 12 and 19 of the Commission Act and articles 56 and 61 of the Constitution.

Later Mr. Mbabazi summarised the principles to consist of free and fair elections, right to vote, adult suffrage secret ballot and transparency. He concluded that the totality of the principles is that there must be a valid election under Section 51 of the Act and article 104 of the Constitution and a President who is validly elected.

Dr. Khaminwa learned counsel for the 1st Respondent observed that the Constitution and the Act do not define the principles of the Act. He submitted that the principles can be found in the Constitution and its Preamble, the Presidential Elections Act, the Electoral Commission Act, and the Common Law cases. He cited the case of Hackney (1874) 31 L.T. 69, which contains the principles of secret voting, electors having a fair opportunity to cast their votes and arrangement of districts for convenience of voters.

The above principles were adopted in the case of Morgan v Simpson (1 975) Q B 151 (1974) 3 ALL ER 722 (CA) which emphasises that there must be voting by secret ballot, there must be no substantial departure from the procedure set out by Parliament as to render an ordinary person to condemn the election as a sham, and a substantial proportion of qualified voters should not be disfranchised. He summarised the principles to be that the elections must be free and fair, it must be by secret ballot and must be conducted in accordance with the procedure laid down by Parliament. The most important test is that a considerable number of voters must not be prevented from voting. The burden was on the Petitioner to demonstrate that a substantial number of voters were prevented from voting.

Mr. Kabatsi, learned counsel for the 2nd Respondent agreed with Mr. Mbabazi’s list of principles of free and fair elections, vote by secret ballot and universal suffrage. These principles are contained in the Act and the Constitution. He submitted further that the principles of freedom and fairness were laid down in the case of AG v Kabourou (1995) 2 LRC 757 which emphasised that there must be laws put in place that promote conditions of freedom and fairness. He submitted that the Presidential Elections Act did that.

In my opinion, the principles of the Act can be summarised as follows:

• The election must be free and fair

• The election must be by universal adult suffrage, which under pins the right to register and to vote.

• The election must be conducted in accordance with the law and procedure laid down by Parliament.

• There must be transparency in the conduct of elections.

• The result of the elect ion must be based on the majority of the votes cast.

The overriding principle in my view is that the election must be free and fair. It is stated in the Commission Act that the Commission must ensure that the election is conducted under conditions of freedom and fairness. In order to do so, the Commission must be independent and impartial in the conduct of elections.

The concept of free and fair elections is not defined in the Constitution or in any
Act of Parliament. No judicial authority was cited to explain the concept. However, Mr. Walubiri learned counsel for the Petitioner referred to us passages from his book entitled “Uganda. Constitutionalism at Cross Roads 1999 (Walubiri PM (Ed) at p. 312 where he writes,

“Article 69 (1) of the constitution requires that the choice of a political system be done through free and fair elections or a referendum. The Constitution does not define or describe the concept of “free and fair elections or referendum” International law and practice has over the years defined what contributes a free and fair election or referendum. You have to look at the totality of the exercise and make a value judgment.”

The author then quotes from Guy and S Goodwin Gills International, Law and Practice Inter Parliamentary Union Geneva, 1 994 where it is stated,

“A successful election does not depend solely on what happens on ballot day, the totality of the process must be examined, including preliminary issues such as the nature of the electoral system, Voter organisation and civic education. The indices of a free and fair election are especially important with respect to the conduct of the election campaign, at which point a number of fundamental human rights come into play together with the responsibility of the State as described in article 2 of the 1966 Covenant on Civic and Political Rights to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present covenant, without distinction of any kind such as race, colour, sex, language, religion, political of other opinion, national or social origin, property, birth or other status. Specifically national and international observers will need to know whether freedom of movement, assembly association and expression have been respected throughout the election period; whether all parties have conducted their political activities within the law, whether any political party or special interest group has been subjected to arbitrary and unnecessary restrictions in regard to access to the media generally in regard to their freedom to communicate their views; candidates and supporters have enjoyed equal security, whether voters have been able to cast their ballots freely; without fear or intimidation whether the secrecy of the ballot has been maintained; and whether the overall conduct of the ballot has been such as to avoid fraud and illegality.”

Elections are the highest expression of the general will. They symbolise the right of the people to be governed only with their consent. The people have a right to make and unmake a government. Article 21 of the Universal Declaration of Human Rights 1948 provides,

“The will of the people shall be the basis of the authority of government: this will be expressed in periodic and genuine elections which shall be hold by secret vote or by equivalent free voting procedures.”

Article 25 of the UN Covenant on Civil and Political Rights 1966 is in the same terms. The two articles also recognise the rights of everyone “to take part in the government of this country directly or through freely chosen representatives.”

Our Constitution incorporates those principles in article 1 (4) which states,

“The people shall express their will and consent on who shall govern them and how they should be governed through regular free and fair elections of their representatives or through referenda.”

An election is the mechanism whereby the choices of a political culture are known. These choices should be expressed in ways which protect the rights of the individual and ensure that each vote cast is counted and reported properly. An electoral process which fails to ensure the fundamental rights of citizens before and after the election is flawed.

To ensure that elections are free and fair there should be sufficient time given for all stages of the elections, nominations, campaigns, voting and counting of votes. Candidates should not be deprived of their right to stand for elections, and the citizens to vote for candidates of their choice through unfair manipulation of the process by electoral officials. There must be a leveling of the ground so that the incumbents or government Ministers and officials do not have an unfair advantage. The entire election process should have an atmosphere free of intimidation, bribery, violence, coercion or anything intended to subvert the will of the people. The election procedures should guarantee the secrecy of the ballot, the accuracy of counting and the announcement of results in a timely manner. Election law and guidelines for those participating in elections should be made and published in good time. Fairness and transparency must be adhered to in all stages of electoral process. Those who commit electoral offences or otherwise subvert the electoral process should be subjected to severe sanctions. The Electoral Commission must consider and determine election disputes speedily and fairly.

Elections are a vital process in establishing a stable and legitimate political order. They are crucial instruments for peaceful and orderly transfer of power. The ballot must replace the bullet as a means of changing government. They should be conducted regularly in a free and fair manner. Political actors and leaders must be prepared to accept the results of elections and to lose gracefully. The Electoral Commission should be granted adequate powers and facilities, to build capacity, efficiency and credibility in its conduct of elections so that they are free and fair and always reflect the general will of the electorate.