On July 28th 2005, Ugandans voted in a referendum and opted for a multiparty democratic system of Governance that allows citizens to join different political parties or organisations to compete for political power.
Consequently enabling legislations namely, the Parties Organisations Act 2005 and the Presidential Election Act 2005 were enacted by Parliament to put in effect the will of Ugandans. These laws provide for the functioning, conduct and regulation of financing of political parties.
Political Parties are required under the law to set up democratic structures within their party system, indicating among other things, the system of electing party flag bearers during elections.
Political party structures are organised in varying degrees along the country’s administrative units. Election of party officials in principle takes a bottom-up approach starting from the lowest administrative unit, the Village, then on to the Parish, Sub-county, County, Sub-district, District and ultimately the National level. Some parties adopt a parliamentary approach where delegates are elected to a parliamentary constituency council.
Across all parties, executive power rests with the National Executive Committee or NEC which is normally elected at the national delegates’ conference (NDC). The NDC is the highest decision making organ of the party which meets at regular intervals as provided for in the party’s constitution.
The rules and regulations for electing parliamentary and presidential candidates within the parties closely mirror those laid down in the country’s constitution.
The Constitutional requirement include, among others that a presidential candidate shall be a Ugandan citizen of not less than 18 years old. On the other hand requirements for parliamentary candidates include, among others, citizenship, and must be a registered voter. Procedurally however, the parties deviate slightly in the nomination processes for both presidential and parliamentary candidates.
A party presidential candidate is sponsored by a Political Party under the Presidential Party’s Act 2005. However section 9 of that Act also provides for the sponsoring of a candidate standing as an independent candidate without being sponsored by a political party.
However although this section is routed in article 72 (4) of the Constitution which gives freedom for any person to stand for an election as a candidate, independent of any political organisation or party, that freedom is only exercisable if that article is operationalized by Parliament passing an enabling law under article 72 (5). Such a law would regulate the manner of participation in and financing of elections by individuals seeking political office as independent candidates.
However, article 72 (4) of the Constitution allowing the participation of independent candidates in elections has not been operationalized and therefore leaves a vacuum on the governance, conduct and financing of independent candidates.
The none operationalization of article 72 (4) leaves independent candidates with no legal cover to participate in elections. Allowing their participation is like the biblical sowing of an old cloth onto a new one. The scenario inevitably leads to disaster-a constitutional disaster.
The law has not given any role of an independent candidate who succeeds in an election. There is no legal framework whereby such a candidate can shape the agenda of Government and its policies. There is no legal indication of an alternative Government that can be formed by a successful independent Presidential candidate.
Many of the independent candidates actually participated in their parties’ primary elections and lost. Mostly do this to create unhealthy competition even where otherwise there would be no real opponents. Consequently during the Electoral Commission (EC) nomination exercise there were more independents than party candidates who were nominated.
Being alien in the current multiparty political dispensation and therefore groping in legal darkness, the practice is for independent candidates who have succeeded in the elections, to sign protocols of co-operation with political parties either to support the party’s position in parliament or not to oppose them. It is an admission of the absence of any political space for Independent candidates outside the multiparty constitutional dispensation as it currently obtains in the Country.
A practice which allows independent candidates who have no enabling legal regulatory constitutional framework as to their funding, code of conduct, or consultative formula, etc, to participate side by side with party candidates who are regulated by both the constitution and the enabling law made there under, can only be registered as a sad day for Uganda as it stands to admit that the referendum of 2005 was held in vain. Sad indeed that the constitutional provision that power belongs to the people, who however exercises it in a manner provided by the Constitution, has been allowed to fall by the wayside and probably picked by the biblical proverbial birds.
It is a Constitutional contradiction in terms, where same constitutional provisions are upheld on one hand, and ignored with a wave of a hand on the other. It is an acceptable that same provisions of a Country’s Constitution can be allowed to be taken like empties drifting by, saluted with Lamentations of “everybody has kept silent”.
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Author
Sam is a founding partner of the Firm and heads the Banking and Finance Department. He has been practicing as a lawyer for almost 45 years and is recognised as a leading authority on land law and in the Ugandan banking and financial services sector. His main areas of practice include banking and finance, real estate, agriculture and litigation.
