Abstract- Christianity has been dropped by the positivist school of thought, this school believes that law is derived from the values, norms and aspirations of the people. To contrast with the positivists, the Natural school of thought believes that law is a set of rules that come from God as the good deeds and morals as provided for in the Ten Commandments. These rules shape human beings into who they are supposed to be thereby harmonizing the society. Hence this research paper is meant to examine the relevance of Christianity in the legislative and judicial processes.
Introduction
The divorce of modern Western legal scholarship from its Christian heritage is usually attributed to a decline of Christian faith in the West, at least among scholars, since the so-called Enlightenment of the late eighteenth century, and to the accompanying tendency in all the social sciences to look to political, economic, and other material factors, rather than to moral or spiritual values, in explaining social institutions and public policies. On looking at jurisprudence, it must be noted that there are basically two categories or camps; those that find a necessary relationship between the nature of law and morality, and those that view law as a social artifact, conceptually divorced from morality, whatever their contingent similarities may be. Theories that affirm a necessary relationship between law and morality are called “natural law” theories, while theories that emphasize the social creation of law fall under the appellation “legal positivism.” It is evident that there is a clear similarity between ‘natural law ‘and some of the foundational principles of a Christian jurisprudence, Jonathan Edward Maire1 lists the following as the defining features of a Christian jurisprudence :-
The renunciation of the construction of law and morality as radically distinct realms, which construction entails an ontology and epistemology that sees law as comprised of the historical facts called ‘rules’ which are objectively known and applied, while morality is comprised of values and preferences which are known or believed in only subjectively.
The acknowledgement of a transcendence-existence independent of purely subjective belief or objectivity discoverable human convention- as a preeminent feature of a moral order.
The acceptance of a notion of personhood in which true humanness is seen in the light neither of the enlightenment glorification of man as autonomous nor in the scientific determinism of modern times, but rather in the light of the biblical truth that we are made in Gods image, with a concomitant recognition of moral legal obligation as being founded upon notions of responsibility to neighbor rather than rights.
The recognition that legal judgment doesn’t proceed as is supposed by legal positivists in a preeminently deductivists mode from the rule to fact to conclusion, but that the ampliative forces of moral reflection play in many cases a preeminent role and in all cases , some role , in legal judgment , while rejecting the claims of the radical –skeptics that rules plat virtually no part in the thought processes of the judge, whose decisions are in reality the product of social , cultural, or psychological forces over which the judge has no control.
Historical background
Prior to the so-called Enlightenment of the 18th century, it was almost universally presupposed among Western legal philosophers that the tri-une God is the ultimate source of order, of justice, and of human destiny. However a cursory look at the recent history illustrates a clear deviation from the above understanding. Today the positivist interprets legal rules according to their plain meaning or, in case of ambiguity, according to the policies they represent, while the naturalist considers also the implicit moral purposes of the rules in the light of the system of justice of which they are a part. Which permit or even compel an accommodation between politics and morality? The important question to be asked therefore is what Christianity has to do with the law?
This paper seeks to reconcile Christianity and the law, viewing Christianity as the back drop on which the law has to be made, I trace the challenges that Christian jurists have had in determining the impact that Christianity has had on jurisprudential schools of thought. There has been reluctance by scholars to acknowledge the interdependent nature of law and morality. The basic Christian tenet is the recognition of morality as a base line for Gods revelation. ‘The moral context in which Christianity operates is one informed by the written word.
The resources of a Christian morality are to be found not only in the law- like prohibitions and injunctions of scripture, but as well as in what we learn from God’s revelation of his character, the parabolic utterances of Jesus, the particular histories of the bible characters’2
Christianity, Morality and the law
In the twenty-first century fundamental issues now confront lawmakers. The Western legal tradition is now in crisis partly because of the weakening of the belief system on which it was originally based and partly because it now confronts other legal traditions in the gradual construction of a body of transnational and Trans-cultural world law. The relevance of morality in legislative drafting has been the contentious issue amongst scholars, relying on Jonathan Edward Maire’s description of the defining features of a Christian jurisprudence; we note that morality is proposed as the back bone on which laws must rest, This is fundamentally a Christian’s understanding of what the law must consist of and in a way reveals the role that Christianity can play in the Legislative and adjudicative process.
The Famous Debate- Morality and the law
This question has primarily been a point of contention for the last 150 years, the naturalist have embraced the concept of morality being the platform on which rules are developed and applied, they believe that the law ‘ought’ to be interpreted in the moral context. There is definitely some form of allegiance of the naturalist towards Christian belief although one must not think that they are one and the same, Jonathan Edward Maire argues that his point of contention with the naturalist is their failure to recognize the ‘sovereign’ as the eternal God of heaven and earth. The most resistance comes from the legal positivists.
The main tenet of the legal positivists is that rules are competent to decide cases without reference to moral principles or values. This is the belief I hope to refute on the ground that Christianity has played and can play a large role in legislative advancement and thus must not be ignored. Positivists argue that once a law is born, it gets a life of its own, independent of morality and that it is the job of judges merely to apply the law with out reference to moral considerations. The late legal fathers of legal positivism tradition Jeremy Bentham and Austin3 reject any relationship between law and morality, Bentham considered natural rights as merely ‘none sense on stilts’, The alienation of law from morality is known as the ‘separability thesis’ Coleman4 states that the positivists share two central beliefs : first that what counts as law in any particular society is fundamentally a matter of social fact or convention (“the social thesis”): second, that there is no necessary connection between law and morality (“the separability thesis”). The latter belief may be interpreted as being the possibility of identifying a community’s law without necessarily having recourse to its morality. A critical analysis of such considerations made by the positivist do reveal inconsistencies in their argument , Ronald Dworkin sites out situations where the moral norms in a community form part of the law, this being in force for the ‘truth’ that they hold out .
For Dworkin the fact that Moral principles have the force of law, because they are appropriate and true, or accepted even though they are formally enacted establishes for Dworkin that first, the positivist conception of law as rules must be abandoned.
Secondly; the claim that judges exercise of their discretion –the authority to extend beyond the law to appeal to moral principles to resolve controversial cases. The belief that judges only apply the law is easier said than done, for it means making a substitution of the role that the personality of a judge plays in the adjudicative process. Jonathan Maire in his essay, ‘The possibility of a Christian jurisprudence’ believes that ‘Judges have a larger role in court decisions, than the positivist make us believe, the values of a judge do play a large role on the out comes of a case’5
In resolving hard and controversial cases, judges typically appeal to principles of political morality for example in determining how much weight to give to precedent; Judges may often apply alternative conceptions of fairness. It is evident that the judge shall not rely on his basic knowledge of the law alone. It might be argued by the positivists that the procedure of a judge making a decision based on his morality which in turn will be legally binding upon others is violating the old shibboleth law against legislating morality, to the extent that the judge creates law in light of his morality.
Melvin Eissenberg6 readily acknowledges the significant part played by moral norms in common law reasoning, Alexander Bickel7 too says that judges are immersed in social tradition and its history, which will permit them to extract ‘fundamental presuppositions from their deepest selves’ from the evolving morality of our traditions. Certainly I believe, one reason some positivists have insisted upon the distinction between law and morality and in that regard have discarded the relevance of Christianity in legislation is the following:- while both law and morality provide standards by which the affairs of people are regulated, morality is inherently controversial, people disagree about what morality prescribes and uncertainty exists concerning the limits of permissible conduct and nature and scope of one’s moral obligations to others.
Anthropologists such as Margaret Mead8 have tried to find a ‘nexus’ or unifying set of moral values that unite people across the globe, these are merely limited to such moral norms such as murder, incest etc but the positivist would ask , whether there is a unifying moral value on obeying traffic rules? The answer to this Dworkin advances in making reference to Hart’s9 rule of ‘recognition’ is that even if some moral principles are legally binding, not every moral principle is a legal one. Jonathan Edward Maire insists that although such rules are not predominantly moral in nature, they are set out with the motive to encourage ‘order’ which is a sub-set of the greater rule of not harming another which is a moral value.
Consequently the rules of a legal system can not be understood in abstraction from moral context, it is rather evident Jonathan Maire argues that the law and morality are interdependent, he sees a relationship between legal rules and morality and sights out several examples where the two form a union for example, rules prohibiting the innocent killing of others fall under legal and moral rules. It is quite easy to see Christian teachings or law being incorporated here, take for example the biblical commandment which condones killing, ‘thou shall not murder’10, it says. It must however be noted that the positivist may find it difficult to see the relationship between some rules and morality for example, he may find it remote to associate rules of a traffic code with the law but Jonathan Maire argues that the very essence of such rules is founded on the ‘basal norm of order which in turn is justified by the fundamental norm of avoiding harm.
This is perhaps the foundation on which tort law developed in England: the presumption that a person should act reasonably so as not to cause injury to others, is in turn based on the larger premise of maintaining moral order in society, this being the same principle on which the Christian doctrine is based on. There is thus a suggested frame work in which morality under the wider umbrella of Christianity could be incorporated in the legislative process, legal history is evidence of such a relationship for example; In the English case of Donoghue V Stevenson11 the plaintiff had consumed part of the contents of a bottle of ginger beer produced and bottled by the defendants when she discovered the remains of a decomposed snail, she sued for her resulting shock and what she alleged to be Gastro-enteritis, on the theory that the defendant bottling company owed her a duty to take reasonable care in the manufacturing and bottling process, the judges had differing opinions of the matter but Lord Atkins is worthy of noting for he suggested the neighbor principle, he said ‘the rule that you are to love your neighbor becomes in law: you must not injure your neighbor and the lawyers question is , who is my neighbor receives a restricted reply. You must take reasonable care to avoid acts and omissions which you can reasonably foresee would likely injure persons who are so closely affected by your acts that you ought to have them in contemplation as being so affected when you are directing your mind to acts or omissions which are called in question’
Jonathan Maire suggests that lord Atkins could have arrived at the same result without using a religious metaphor and the cynical observer might argue that his ruling was ‘really’ based upon notions of social policy and that the religious imagery was superfluous, whatever lord Atkins real motivation, the ruling demonstrates a principle of Christianity being worked into a legal rule. A possible integration of the law and morality encompassed under the larger umbrella of Christianity is not something alien, as the above case demonstrates. It does not however suffice that we reject immoral rules and consider them non-legal, for even the positivist does not deny that many factors including morality may and do concur in the development of a legal rule and that where there is a possible choice of adjudication, moral or other extra-legal consideration may induce the coming to a decision, this was put to practice in Dudgeon V the United Kingdom12 where the dissenting Judge Walsh while ruling on a case of homosexuality stated that ‘the law has a role in influencing moral attitudes and if the respondent Government is of the opinion that the change sought in the legislation would have a damaging effect on moral attitudes then in my view it is entitled to maintain the legislation it has.’
However what the positivist insists on is that once the rule is laid down or determined, it does not cease to be law because it may be said or shown to be in conflict with morality.
The possibility of reconciliation between the positivists, natural law proponents and Christians alike is therefore not an abstract concept or a long shot; the possibility of a Christian oriented legal system is real and tangible, but it can only be possible with the elimination of some constraining factors such as liberalism and secularism that have encouraged the divorce of the law from morality and in the wider sense Christians value, for reason is the sole pedestal on which, the positivists lay out their argument. The current trend of things though might be encouraging to the Christian for we have moved from the stage of Hard ‘positivists’ the likes of Bentham and Austin to the’ soft’ positivists like Hart who are inclined to recognize the relevance of Morality to the law, the prayer of every Christian would therefore be for a further Softening of the positivist views towards Morality and the law for then and only then can we recognize a fully functioning Christian Jurisprudence!
BIBLIOGRAPHY
Texts
1. Harold J. Berman, ‘The interaction of law and religion’ 1974
2. J. Coleman ‘Negative and positive, positivism’ University of Arizona
3. Jonathan Edward Maire ‘The possibility of a Christian jurisprudence’ 4. 4. American Journal of jurisprudence, Notre Dame Law School Vol.40, 1995
5. J. Omony, ‘Key issues in jurisprudence’ 1st edition
6. Ronald Dworkin ‘Taking rights seriously’ (1977)
CASE LAW
1. Donoghue V Stevenson (1932) AC 1 562
2. Dudgeon V United Kingdom (Application no. 7525/76)
Moses Ngorok
LLB
Wednesday, July 13, 2011
IS THERE INTEGRITY IN THE METHODS OF VOTE FISHING IN UGANDA?
Abstract- Very often the electoral process in Uganda has been marred with a lot of irregularities and after elections many electoral petitions have been have been made to courts of judicature. February 18th 2011 is the day when the Presidential elections were conducted that saw the re-election of Yoweri Kaguta Museveni the incumbent for another 4th term. However his landslide victory of 68% was rejected by the opposition leaders who termed the entire process to have been a sham. This research paper is hence forth meant to make a brief about what transpired in the recently concluded elections.
INTRODUCTION
We have witnessed the last concluded presidential and parliamentary elections on 18th February 2011 and there is need to examine the whole voting process and give credit where it is due. The fishing methods too were to some extent out of context with the extravagance of the incumbent candidate, voter bribery, ballot stuffing and many other inconsistencies with in the Electoral Commission. This note is to examine those methods in line with integrity.
We have concluded election and subsequently the swearing in ceremony for the President of Uganda who was voted in by Ugandans at a percentage of 68% in lead of other candidates. However, it is important to examine the voting process in line with integrity.
A constitutional voting process and procedures are meant to create fairness, justice and transparency. It is important to note that when the procedures are followed, then the loopholes will be avoided.
The Constitution mandates every one above the age of 18 to vote1 and it is therefore everyone’s right to participate in a free and fair election. The election process ended and it is inevitable to examine the process in line with the constitution and other integrity parameters to measure the applicability of integrity during the voting and campaigning processes.
There are a number of things that we should examine during campaigns and also the voting process.
First, there was extravagant use of public money during the campaigns by the president yet he himself was a candidate though incumbent, public resources were wasted. The Presidential Elections Act2 prohibits all candidates from using public resources for the purposes of campaigning. S.27 (2) of the Act however, provides exceptions for the incumbent regarding use of those resources ordinarily attached to his office and requires the Minister of Public Service to lay before Parliament the resources in question. On January 2nd 2006, the 2nd Deputy Prime Minister and Minister of Public Service Hon. Henry Muganwa Kajura laid before Parliament the entitlements of the President.
The document is very brief and states inter alia that pursuant to S.27 (3) of the Presidential Act 2005, the facilities ordinarily attached to and utilized by the President include:
“The usual transport facilities provided to the President, the usual security detail facilities provided to the President, the usual personal staff and their facilities attached to the President, the usual information and communication facilities attached to the President.”3
The concern is about the manner in which the section was enumerated because not many people know the usual facilities, personnel and transport facilities attached to the President. As a result the law on not using public resources during campaigns can be abused. It is also difficult to monitor what one does not know.
There is need for a more detailed version of the entitlements of the President be done to make monitoring possible and also ensure that public resources are not used by any candidate during the campaigns. Unlike the Parliamentary Elections Act4 which provides for a punishment upon conviction for use of public resources by any Parliamentary candidate of a fine not exceeding 20 currency points (400,000/=) or imprisonment not exceeding one year or both, the Presidential Elections Act does not provide a penalty for any candidates who breach the law regarding use of public resources for campaigning.
Despite the lacuna in the law, the Electoral Commission should issue a directive to all candidates to refrain from using public resources for purposes of campaigning to stop the wastage.
The candidates used insulting, abusive and derogatory, language during their campaigns.
Some of the language promotes violence and biases the public. Forum for Democratic Change Vice-President Hon. Salaamu Musumba while addressing a rally in Busoga square in Jinja asked their supporters to carry sticks and catapults and hide them somewhere to deal with people who will steal votes.
In regards to this issue, the DEMO GROUP had this to say:
Though we appreciate the importance of ensuring that elections are conducted freely and fairly and all Ugandans are responsible for ensuring this, we would like to discourage any encouragements of violence and instead advise vigilance of all stakeholders through deployment of their agents in all polling stations nationwide, Parties should also make sure their agents are present in all tally centers and record and report any malpractices that may take place on polling day. We also advise all voters to ensure that they participate in monitoring the polls by being present to vote and during counting at the centers where they are registered.
DEMGROUP further notes that President Yoweri Kaguta Museveni while addressing a rally in Mbikko, Jinja district stated “These night dancers are telling you that education for all means “bonna basiruwale (Universal ignorance). I’m told that is what Besigye has been telling you here.” We advise that language which derogates, insults and ridicules any opponent is contrary to S. 23 (5) (d) and (e) of the Presidential Elections Act and should be prohibited. The EC in liaison with the police should take practical steps to ensure that all candidates who breach any provisions of the law are dealt with accordingly.5
The use of such language is a question of integrity because as Ugandans we need to respect each other but where there is use of such language, and then it befits the idea of harmony and integrity. Therefore, according to DEMO GROUP’S REPORT, the use of such language indicates the lack of integrity by the responsible candidates. There was voter intimidation during the campaigns and also during elections. This action was inconsistent with the provision of the constitution6 where people are supposed to express- their free will in the exercise and that government should ensure this is done. The question is that who is to protect the citizens from such intimidation? And are they not in breach? Fear was created in the voters and in fact this is one of the reasons why few people turned out to vote. In the same report by DEMOGROUP, they presented the following;
On January 17 2006, Hajji Moses Kigongo the vice chairperson of National Resistance Movement while addressing a rally in Kyamate, Ntungamo district was quoted to have said that;
“We shall allow them to enjoy the water, hospitals but not the jobs.
These utterances are contrary to the 1995 Constitution of Uganda7 which provides that “All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.” Article 21(2) of the Constitution states that “Without prejudice to Article 21 of this Constitution, a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion or social or economic standing, political opinion or disability.”
DEMGROUP therefore urges all agents of the incumbent and all candidates to desist from utterances that infringe on the freedom of association and create fear in people who may want to support different candidates. This report indicates the lack of integrity that the various leaders exhibited before the voters and therefore in light of integrity, they failed to maintain it.
As in 2006, appeals disputing the academic qualifications of candidates flooded the courts. The requirement excludes the majority of Ugandan citizens from passive suffrage, and necessitates the Electoral Commission and the National Council for Higher Education to exercise discretion in recognising or rejecting equivalency of qualifications. The academic prerequisite has led to the falsification of diplomas, and has further exacerbated the personalisation of campaigns, distracting the attention of voters from substantive policy issues. Further, the requirement has saddled a number of candidates with the cost of defending themselves against frivolous challenges. On another issue, the Supreme Court upheld the right of 70 MPs to stand for the elections, even though they had violated the Constitution by switching party affiliation during their tenure in the previous parliament, without vacating their seats. The Constitution is ambiguous as to whether an MP would have to vacate a seat if expelled by their party. The 2011 Ugandan general elections showed some improvements over the previous elections held in 2006. However, the electoral process was marred by avoidable administrative and logistical failures which led to an unacceptable number of Ugandan citizens being disenfranchised.
The power of incumbency was exercised to such an extent as to compromise severely the level playing field between the competing candidates and political parties. Notwithstanding a number of incidents of violence and intimidation, especially on Election Day, the electoral campaign and polling day were generally conducted in a peaceful manner. Restraint in campaign rhetoric contributed to this improved campaign environment. With genuine political commitment by all stakeholders, further progress towards a fully pluralistic and multi‐party democracy can be achieved.8
The integrity of the media:
The state‐owned broadcaster, the Uganda Broadcasting Corporation (UBC), failed to comply with its legal obligations to treat each presidential and parliamentary candidate equally. The UBC television channel gave the incumbent president and the ruling National Resistance Movement party substantially more coverage than their nearest rivals.
The government’s dominance of state‐owned radio, the only broadcasting network covering almost all areas of the country, was not balanced by private radio stations established outside the capital, which generally provided opposition candidates with very limited access. One of the scenarios is that DR. Besigye was denied access to various radio stations to air out his views. This was against the media integrity.
Polling and counting
Election Day unfolded peacefully for the most part, but poor application of basic procedures revealed inadequate training of polling station staff and implied insufficient safeguards against fraud. Disturbingly high numbers of citizens found that they were not registered where they expected, leading to confusion and avoidable instances of disenfranchisement, this is a question of integrity to the officers who were in charge because most people’s names were scrapped off occasionally and there was no explanation to this. I managed to talk to one of the supervisors in my area of residence and they actually told me that they just didn’t have time to scrutinize the lists for long hours with little pay. This was an exhibition of the highest order of dishonesty.
Tabulation and publication of results
Tallying of results was assisted by the new Electronic Results Transmission and Dissemination System, according to which clerks at District Tally Centers entered results data and scanned Declaration of Results Forms before transmitting these to the National Tally Centre. Although the system enabled swift transmission of results once entered, party agents and observers had difficulty viewing the data entry process in one third of cases and the process often took several days, in some cases amid tensions and apparent irregularities. This system that was thought to be of help turned out to be an enigma as it caused chaos amongst polling agents who did not know how the technology worked. The Electoral commission was dishonest as they promised that results would come straight from district tally centers to party agents in Namboole before they were finally entered, this was not the case as the party agents didn’t have a chance to view the results before they were tabulated. There was breach of integrity in this case. For purposes of the future, let’s examine the recommendations that the European Mission Observer set out:
Recommendations
In advance of future elections, the election framework would require reform to be fully in line with Uganda’s international, regional and constitutional commitments and obligations. As a contribution to this process, a set of detailed recommendations is included at the end of this report. Key recommendations include the following:
The problem of lack of trust in the Electoral Commission could be addressed by improving the transparency and credibility of the system for appointing Commissioners, alongside the provision of security of tenure. Greater consensus could be achieved by including opposition and civil society voices in the appointment process, as well as the Presidency and Parliamentary majority.
The criteria for nomination and precise terms of reference for Electoral Commissioners and all other electoral officials should be set out in law.
All Members of Parliament, including any quota seats for disadvantaged groups should be elected by direct and universal suffrage. Consideration should be given to amending the Constitution and the Parliamentary Elections Act with a view to reviewing the Special Interest Groups provided for. The current quotas for youth, workers and the military do not meet criteria of acceptable positive discrimination for disadvantaged groups since the groups concerned do not require particular assistance and in the case of the armed forces, special seats raise serious concerns of independence, accountability and conflict of interest.
In addition, the implementation of Special Interest Group elections runs contrary to
democratic standards in a number of respects. Seats currently reserved for persons with
disabilities should, if maintained, be elected by universal suffrage.
Another measure that would increase public trust in the electoral process is the creation of a new National Voter Register, with registration continuously updated through District Registrars and a clearer system for transferring registration locations. Public display periods both before and after cleansing should be adequately communicated to the public in both urban and rural areas, and the final assignment of polling stations should be completed at least one month before polling day, at which point it should be communicated by a variety of means, including outreach programmes. Voters should be identified by an identity card
system or some similar voting document.
Conditions for freedom of speech and equitable access to the media would be improved by the reform of the regulatory authorities, the Media Council and the Broadcasting Council, to guarantee their independence and insulate them from government control. An independent regulatory authority with statutory powers to deal adequately with complaints during election period would create a basis for a more level playing field for media coverage and help to improve voters’ access to information.
Legislation is required to curb the use of state and government resources during an election period for the advantage of the incumbent. For example, the use of “ordinarily attached official facilities” by the incumbent presidential candidate, other than those related to his personal security, should be restricted to the execution of his official duties only.
Once the 2012 census figures are published, the Electoral Commission will require adequate resources to fulfill its constitutional obligation to demarcate electoral boundaries, so that their sizes are as equal as possible to the population quota, taking into special account densely populated areas.
Parliament needs also to revise the statutory equation of women seats with administrative districts or cities, in order to enable the Electoral Commission to demarcate women‐only district constituencies which respect the equality of the vote.
Parliament should establish an ad hoc committee to review practice and law in Uganda and across the East African Community and propose a bill that would effectively regulate campaign spending.
Introducing campaign spending caps on individual parliamentary candidates, to be monitored and enforced by the Electoral Commission and the courts, would reduce the monetisation of politics.
The EU EOM urges the authorities, political parties and civil society of Uganda to swiftly start to take these and other required steps detailed in the recommendations section of this report in order to ensure that the conduct of future elections can be held in accordance with Uganda’s international, regional and constitutional commitments and obligations.( adapted from a final report of the European Observer Mission in the general elections)
One important thing to note in this report is that it emphasizes transparency of the different groups, honesty which are of course antonyms to integrity.
Below is an experience I witnessed during the last year’s campaigns and it could guide us in examining integrity:
You might wonder what pulls the crowds when a politician is "making his points". I have had a lot of fun during the ongoing campaigns and elections in this country.
In Mbarara, while at a rally, one politician said, “I will build roads for you, I will plant new forests...." and it all seemed like it was not a joke until he broke my lungs with laughter when he deceptively added "I will build dams for you so that you can fish and make your own power." One of the people in the crowd asked,' "We do not have rivers, how will you build the dams?" The politician then answered "Even the rivers...i will provide, just give me your mandate...” The Ugandans clapped and eventually gave him votes.
Another scenario, still in western Uganda...some staunch NRM guys convinced people that if they voted for the bus, the bus would be used to ferry the then incumbent candidate in the presidential race, Yoweri Kaguta Museveni away...they did as told. Drama ensued when while tallying...Museveni was winning…they began to fight claiming that they had voted for the bus to ferry Museveni away which turned out not to be the case...
Another stunt that I liked was in Bugerere where there was a Campaign. A young lawyer who was contesting to represent his people in the August house as a Member of Parliament had his game well planned. While at the open air campaigns, the incumbent MP gave his speech and got seated. Now it was the young lawyer's turn...he bravely took stage and with him had a photograph of the incumbent MP dozing in parliament...this was his introduction...you need someone sober for this county...someone who is alert...someone who doesn't doze...one of the people asked..do you have any evidence of anyone who dozed in parliament…the young lawyer could not hesitate but pull out the incumbent MP's photograph...the crowd went in a roar...this was not enough for the incumbent MP. He stood up in rage and went straight to this young contestant and punched him before the public....the public went into a maze and decided not to vote for a chaotic and dozing incumbent MP. The next day, every one lined up to vote for the young lawyer and he won with a landslide.9
There are many petitions that ensued after elections in fact over 100 of them. This shows that there was no integrity in the dealings by the respondents in these petitions. Integrity should always be the way if we are to achieve clean democracy in Uganda.MICHAEL ABONEKA.
COURSE: LLB
YEAR: TWO
EMAIL: abonekajunior@gmail.com
abonekamichael@hotmail.com
abonex2007@yahoo.com
PHONE NO: 0779201692
0791809005
0700896630
INSTITUTION: UGANDA CHRISTIAN UNIVERSITY
INTRODUCTION
We have witnessed the last concluded presidential and parliamentary elections on 18th February 2011 and there is need to examine the whole voting process and give credit where it is due. The fishing methods too were to some extent out of context with the extravagance of the incumbent candidate, voter bribery, ballot stuffing and many other inconsistencies with in the Electoral Commission. This note is to examine those methods in line with integrity.
We have concluded election and subsequently the swearing in ceremony for the President of Uganda who was voted in by Ugandans at a percentage of 68% in lead of other candidates. However, it is important to examine the voting process in line with integrity.
A constitutional voting process and procedures are meant to create fairness, justice and transparency. It is important to note that when the procedures are followed, then the loopholes will be avoided.
The Constitution mandates every one above the age of 18 to vote1 and it is therefore everyone’s right to participate in a free and fair election. The election process ended and it is inevitable to examine the process in line with the constitution and other integrity parameters to measure the applicability of integrity during the voting and campaigning processes.
There are a number of things that we should examine during campaigns and also the voting process.
First, there was extravagant use of public money during the campaigns by the president yet he himself was a candidate though incumbent, public resources were wasted. The Presidential Elections Act2 prohibits all candidates from using public resources for the purposes of campaigning. S.27 (2) of the Act however, provides exceptions for the incumbent regarding use of those resources ordinarily attached to his office and requires the Minister of Public Service to lay before Parliament the resources in question. On January 2nd 2006, the 2nd Deputy Prime Minister and Minister of Public Service Hon. Henry Muganwa Kajura laid before Parliament the entitlements of the President.
The document is very brief and states inter alia that pursuant to S.27 (3) of the Presidential Act 2005, the facilities ordinarily attached to and utilized by the President include:
“The usual transport facilities provided to the President, the usual security detail facilities provided to the President, the usual personal staff and their facilities attached to the President, the usual information and communication facilities attached to the President.”3
The concern is about the manner in which the section was enumerated because not many people know the usual facilities, personnel and transport facilities attached to the President. As a result the law on not using public resources during campaigns can be abused. It is also difficult to monitor what one does not know.
There is need for a more detailed version of the entitlements of the President be done to make monitoring possible and also ensure that public resources are not used by any candidate during the campaigns. Unlike the Parliamentary Elections Act4 which provides for a punishment upon conviction for use of public resources by any Parliamentary candidate of a fine not exceeding 20 currency points (400,000/=) or imprisonment not exceeding one year or both, the Presidential Elections Act does not provide a penalty for any candidates who breach the law regarding use of public resources for campaigning.
Despite the lacuna in the law, the Electoral Commission should issue a directive to all candidates to refrain from using public resources for purposes of campaigning to stop the wastage.
The candidates used insulting, abusive and derogatory, language during their campaigns.
Some of the language promotes violence and biases the public. Forum for Democratic Change Vice-President Hon. Salaamu Musumba while addressing a rally in Busoga square in Jinja asked their supporters to carry sticks and catapults and hide them somewhere to deal with people who will steal votes.
In regards to this issue, the DEMO GROUP had this to say:
Though we appreciate the importance of ensuring that elections are conducted freely and fairly and all Ugandans are responsible for ensuring this, we would like to discourage any encouragements of violence and instead advise vigilance of all stakeholders through deployment of their agents in all polling stations nationwide, Parties should also make sure their agents are present in all tally centers and record and report any malpractices that may take place on polling day. We also advise all voters to ensure that they participate in monitoring the polls by being present to vote and during counting at the centers where they are registered.
DEMGROUP further notes that President Yoweri Kaguta Museveni while addressing a rally in Mbikko, Jinja district stated “These night dancers are telling you that education for all means “bonna basiruwale (Universal ignorance). I’m told that is what Besigye has been telling you here.” We advise that language which derogates, insults and ridicules any opponent is contrary to S. 23 (5) (d) and (e) of the Presidential Elections Act and should be prohibited. The EC in liaison with the police should take practical steps to ensure that all candidates who breach any provisions of the law are dealt with accordingly.5
The use of such language is a question of integrity because as Ugandans we need to respect each other but where there is use of such language, and then it befits the idea of harmony and integrity. Therefore, according to DEMO GROUP’S REPORT, the use of such language indicates the lack of integrity by the responsible candidates. There was voter intimidation during the campaigns and also during elections. This action was inconsistent with the provision of the constitution6 where people are supposed to express- their free will in the exercise and that government should ensure this is done. The question is that who is to protect the citizens from such intimidation? And are they not in breach? Fear was created in the voters and in fact this is one of the reasons why few people turned out to vote. In the same report by DEMOGROUP, they presented the following;
On January 17 2006, Hajji Moses Kigongo the vice chairperson of National Resistance Movement while addressing a rally in Kyamate, Ntungamo district was quoted to have said that;
“We shall allow them to enjoy the water, hospitals but not the jobs.
These utterances are contrary to the 1995 Constitution of Uganda7 which provides that “All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.” Article 21(2) of the Constitution states that “Without prejudice to Article 21 of this Constitution, a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion or social or economic standing, political opinion or disability.”
DEMGROUP therefore urges all agents of the incumbent and all candidates to desist from utterances that infringe on the freedom of association and create fear in people who may want to support different candidates. This report indicates the lack of integrity that the various leaders exhibited before the voters and therefore in light of integrity, they failed to maintain it.
As in 2006, appeals disputing the academic qualifications of candidates flooded the courts. The requirement excludes the majority of Ugandan citizens from passive suffrage, and necessitates the Electoral Commission and the National Council for Higher Education to exercise discretion in recognising or rejecting equivalency of qualifications. The academic prerequisite has led to the falsification of diplomas, and has further exacerbated the personalisation of campaigns, distracting the attention of voters from substantive policy issues. Further, the requirement has saddled a number of candidates with the cost of defending themselves against frivolous challenges. On another issue, the Supreme Court upheld the right of 70 MPs to stand for the elections, even though they had violated the Constitution by switching party affiliation during their tenure in the previous parliament, without vacating their seats. The Constitution is ambiguous as to whether an MP would have to vacate a seat if expelled by their party. The 2011 Ugandan general elections showed some improvements over the previous elections held in 2006. However, the electoral process was marred by avoidable administrative and logistical failures which led to an unacceptable number of Ugandan citizens being disenfranchised.
The power of incumbency was exercised to such an extent as to compromise severely the level playing field between the competing candidates and political parties. Notwithstanding a number of incidents of violence and intimidation, especially on Election Day, the electoral campaign and polling day were generally conducted in a peaceful manner. Restraint in campaign rhetoric contributed to this improved campaign environment. With genuine political commitment by all stakeholders, further progress towards a fully pluralistic and multi‐party democracy can be achieved.8
The integrity of the media:
The state‐owned broadcaster, the Uganda Broadcasting Corporation (UBC), failed to comply with its legal obligations to treat each presidential and parliamentary candidate equally. The UBC television channel gave the incumbent president and the ruling National Resistance Movement party substantially more coverage than their nearest rivals.
The government’s dominance of state‐owned radio, the only broadcasting network covering almost all areas of the country, was not balanced by private radio stations established outside the capital, which generally provided opposition candidates with very limited access. One of the scenarios is that DR. Besigye was denied access to various radio stations to air out his views. This was against the media integrity.
Polling and counting
Election Day unfolded peacefully for the most part, but poor application of basic procedures revealed inadequate training of polling station staff and implied insufficient safeguards against fraud. Disturbingly high numbers of citizens found that they were not registered where they expected, leading to confusion and avoidable instances of disenfranchisement, this is a question of integrity to the officers who were in charge because most people’s names were scrapped off occasionally and there was no explanation to this. I managed to talk to one of the supervisors in my area of residence and they actually told me that they just didn’t have time to scrutinize the lists for long hours with little pay. This was an exhibition of the highest order of dishonesty.
Tabulation and publication of results
Tallying of results was assisted by the new Electronic Results Transmission and Dissemination System, according to which clerks at District Tally Centers entered results data and scanned Declaration of Results Forms before transmitting these to the National Tally Centre. Although the system enabled swift transmission of results once entered, party agents and observers had difficulty viewing the data entry process in one third of cases and the process often took several days, in some cases amid tensions and apparent irregularities. This system that was thought to be of help turned out to be an enigma as it caused chaos amongst polling agents who did not know how the technology worked. The Electoral commission was dishonest as they promised that results would come straight from district tally centers to party agents in Namboole before they were finally entered, this was not the case as the party agents didn’t have a chance to view the results before they were tabulated. There was breach of integrity in this case. For purposes of the future, let’s examine the recommendations that the European Mission Observer set out:
Recommendations
In advance of future elections, the election framework would require reform to be fully in line with Uganda’s international, regional and constitutional commitments and obligations. As a contribution to this process, a set of detailed recommendations is included at the end of this report. Key recommendations include the following:
The problem of lack of trust in the Electoral Commission could be addressed by improving the transparency and credibility of the system for appointing Commissioners, alongside the provision of security of tenure. Greater consensus could be achieved by including opposition and civil society voices in the appointment process, as well as the Presidency and Parliamentary majority.
The criteria for nomination and precise terms of reference for Electoral Commissioners and all other electoral officials should be set out in law.
All Members of Parliament, including any quota seats for disadvantaged groups should be elected by direct and universal suffrage. Consideration should be given to amending the Constitution and the Parliamentary Elections Act with a view to reviewing the Special Interest Groups provided for. The current quotas for youth, workers and the military do not meet criteria of acceptable positive discrimination for disadvantaged groups since the groups concerned do not require particular assistance and in the case of the armed forces, special seats raise serious concerns of independence, accountability and conflict of interest.
In addition, the implementation of Special Interest Group elections runs contrary to
democratic standards in a number of respects. Seats currently reserved for persons with
disabilities should, if maintained, be elected by universal suffrage.
Another measure that would increase public trust in the electoral process is the creation of a new National Voter Register, with registration continuously updated through District Registrars and a clearer system for transferring registration locations. Public display periods both before and after cleansing should be adequately communicated to the public in both urban and rural areas, and the final assignment of polling stations should be completed at least one month before polling day, at which point it should be communicated by a variety of means, including outreach programmes. Voters should be identified by an identity card
system or some similar voting document.
Conditions for freedom of speech and equitable access to the media would be improved by the reform of the regulatory authorities, the Media Council and the Broadcasting Council, to guarantee their independence and insulate them from government control. An independent regulatory authority with statutory powers to deal adequately with complaints during election period would create a basis for a more level playing field for media coverage and help to improve voters’ access to information.
Legislation is required to curb the use of state and government resources during an election period for the advantage of the incumbent. For example, the use of “ordinarily attached official facilities” by the incumbent presidential candidate, other than those related to his personal security, should be restricted to the execution of his official duties only.
Once the 2012 census figures are published, the Electoral Commission will require adequate resources to fulfill its constitutional obligation to demarcate electoral boundaries, so that their sizes are as equal as possible to the population quota, taking into special account densely populated areas.
Parliament needs also to revise the statutory equation of women seats with administrative districts or cities, in order to enable the Electoral Commission to demarcate women‐only district constituencies which respect the equality of the vote.
Parliament should establish an ad hoc committee to review practice and law in Uganda and across the East African Community and propose a bill that would effectively regulate campaign spending.
Introducing campaign spending caps on individual parliamentary candidates, to be monitored and enforced by the Electoral Commission and the courts, would reduce the monetisation of politics.
The EU EOM urges the authorities, political parties and civil society of Uganda to swiftly start to take these and other required steps detailed in the recommendations section of this report in order to ensure that the conduct of future elections can be held in accordance with Uganda’s international, regional and constitutional commitments and obligations.( adapted from a final report of the European Observer Mission in the general elections)
One important thing to note in this report is that it emphasizes transparency of the different groups, honesty which are of course antonyms to integrity.
Below is an experience I witnessed during the last year’s campaigns and it could guide us in examining integrity:
You might wonder what pulls the crowds when a politician is "making his points". I have had a lot of fun during the ongoing campaigns and elections in this country.
In Mbarara, while at a rally, one politician said, “I will build roads for you, I will plant new forests...." and it all seemed like it was not a joke until he broke my lungs with laughter when he deceptively added "I will build dams for you so that you can fish and make your own power." One of the people in the crowd asked,' "We do not have rivers, how will you build the dams?" The politician then answered "Even the rivers...i will provide, just give me your mandate...” The Ugandans clapped and eventually gave him votes.
Another scenario, still in western Uganda...some staunch NRM guys convinced people that if they voted for the bus, the bus would be used to ferry the then incumbent candidate in the presidential race, Yoweri Kaguta Museveni away...they did as told. Drama ensued when while tallying...Museveni was winning…they began to fight claiming that they had voted for the bus to ferry Museveni away which turned out not to be the case...
Another stunt that I liked was in Bugerere where there was a Campaign. A young lawyer who was contesting to represent his people in the August house as a Member of Parliament had his game well planned. While at the open air campaigns, the incumbent MP gave his speech and got seated. Now it was the young lawyer's turn...he bravely took stage and with him had a photograph of the incumbent MP dozing in parliament...this was his introduction...you need someone sober for this county...someone who is alert...someone who doesn't doze...one of the people asked..do you have any evidence of anyone who dozed in parliament…the young lawyer could not hesitate but pull out the incumbent MP's photograph...the crowd went in a roar...this was not enough for the incumbent MP. He stood up in rage and went straight to this young contestant and punched him before the public....the public went into a maze and decided not to vote for a chaotic and dozing incumbent MP. The next day, every one lined up to vote for the young lawyer and he won with a landslide.9
There are many petitions that ensued after elections in fact over 100 of them. This shows that there was no integrity in the dealings by the respondents in these petitions. Integrity should always be the way if we are to achieve clean democracy in Uganda.MICHAEL ABONEKA.
COURSE: LLB
YEAR: TWO
EMAIL: abonekajunior@gmail.com
abonekamichael@hotmail.com
abonex2007@yahoo.com
PHONE NO: 0779201692
0791809005
0700896630
INSTITUTION: UGANDA CHRISTIAN UNIVERSITY
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