Byabakama argues that not all EC officials may qualify to be judges so as to be subjected to the Judicial Service Commission. He says the current method of appointment and the attendant parliamentary vetting process remains a better option.
Electoral Commission chairperson Justice Simon Byabakama (File Fhoto)
Electoral Commission (EC) has opposed several constitutional amendments proposed by the opposition in the
Constitutional (Amendment) Bill, 2019, which
directly affects its operations.
In its proposals tabled by the Shadow Attorney
General, Wilfred Niwagaba, the opposition suggests to among others amendment of
Article 60 to involve the Judicial Service Commission in the appointment of EC
officials, revise qualifications of the EC Chairperson and bar the appointment
to the Commission anybody involved in elective politics.
They also propose amendment of
Article 61 by inserting a new clause requiring the EC to hear and determine an
election complaint before polling within ten days from the date of receipt. The
EC Chairperson, Justice Simon Byabakama, says the
proposed amendment to provide for the Judicial Service Commission to advice on
the appointment of EC officials should be harmonized with Article 147 on
advisory functions of the Judicial Service Commission, which in its current
form doesn’t extend to the appointment of non-judicial officers.
“This may require amendment of the said Article
to accommodate the proposed amendment. In the alternative, only judicial
officer may be subjected to the mandate of the Judicial Service Commission if
he or she appointed as Chairperson of the Commission”, reads part of
Byabakama’s response to the Legal and Parliamentary Affairs Committee.
Byabakama argues that not all EC officials may
qualify to be judges so as to be subjected to the Judicial Service Commission.
He says the current method of appointment and the attendant parliamentary
vetting process remains a better option. About the qualification of the EC Chairperson,
the Commission notes that the proposal to restrict to the position of EC chair
to a High court Judge is restrictive and locks out other professionals who can
competently man the electoral body.
“Given its mandate, the Commission would
benefit from a wide range of various professions; and any person with requisite
qualifications should have the opportunity to administratively steer the
election management body,” further reads Justice Byabakama’s statement. He also says the proposal seeking
to restrict or bar the appointment of people involved in elective politics or
political party to the Commission is discriminatory.
“Decision of the Commission is by consensus and
the issue of impartiality shouldn’t arise. Further, the requirements of Article
60 (5) of the Constitution allows a sitting Member of Parliament, member of
local government council, member of the executive of a political party or
organization, among others, to be appointed as a member of the Commission, only
to relinquish his or her position following the said appointment,” says
He says the involvement in
elective politics or political party or organization leadership falls under the
ambit of electoral matters, public administration and governance hence
rendering the proposal by the Opposition self-defeating. On the proposal for EC to hear
and determine an election complaint arising before polling within ten days
after receipt, Byabakama says the proposal isn’t viable given the volumes of
complaints that arise before and during polling. He says that while timelines
are appreciated, they shouldn’t be prescribed in the Constitution but in the
enabling electoral laws.
“In the last general election we had over 300
complaints handled during and before polling. Reasonable timeline, if any, may
be prescribed under the Electoral Commission Act, Cao 140, mindful that some of
the complaints are not handled in time due to non-attendance by the parties and
witnesses to the said complaints and the need to conduct inquiries and
investigations with other relevant authorities like police and National Council
of Higher Education so as to logically conclude a matter,” Byabakama explains.
The Legal and Parliamentary Affairs Committee
Chairperson, Jacob Oboth, said the EC response has been distributed to
committee members who will later interface with the Commission officials for
clarification if necessary. However, the Commission is silent other amendments
proposed by the opposition, which among others include scraping the
representation of the army in Parliament, repeal of the Office of Prime
Minister and Vice President, reinstatement of presidential term limits and
prohibiting the appointment of Ministers from among MPs among other things.
The Committee is now scheduled to interface
with the Judicial Service Commission (JSC), Uganda Law Society (ULS) and Prime
Minister on the Bill next week.