By Davis Mugabi
Advocates for People (AFP), an organization that fights for good governance and rule of law in Uganda, has written to the Secretary of the Electoral Commission, reminding the EC of how the Dokolo by-election is a nullity.
Through the lawyers of M/s Mbabali Jude & Co. Advocates, the NGO argues that the term of office of Honorable Justice Simon Byabakama Mugyenyi, Hajat Aisha Lubega Basajjanaku, and Honorable Stephen Tasobya, who were the Chairman, Deputy Chairman, and members of the Electoral Commission, respectively, expired on the 17th day of November 2023, having been appointed by the President on the 17th day of November 2016 for a seven year term.
Secondly, Article 60(4) of the Constitution of Uganda provides that if the appointment of a member of the electoral commission is being renewed, the renewal shall be done at least three months before the expiry of the first term.
Third, the President reappointed the said Justice Byabakama Mugyenyi, Hajat Aisha Lubega Basajjanaku, and Honorable Stephen Tasobya to serve for another term on the 3rd day of January 2024. As required under Article 60(4) of the Constitution, the President was supposed to make the reappointments three months before the expiry of the first term, that is, before the 17th day of August 2023, but he did so four months late.
Fourth, in Article 60(4), the word “shall” is used, implying that it is mandatory for the President to reappoint the members of the Commission three months before the expiry of the first term, and having been reappointed four months later implies that the reappointments were unconstitutional.
The NGO argues further that failure to make the appointments three months before the current contract expired rendered the appointment null and void, thereby leaving the Commission without a chairperson and a deputy and with only four members instead of the required seven under Article 60(1) of the Constitution.
“This means that the Electoral Commission currently is not fully constituted and not capable of transacting business in which all the members of the commission are statutorily required. In other words, it is only after all seven members have been properly appointed that one can talk of a fully constituted Electoral Commission capable of transacting business where the participation of all the members is required by the Constitution.,” argues the NGO in a letter dated March 22, 2024.
According to the NGO, the assertion above is supported by the decision in Constitutional Petition No. 46 of 2011 and Constitutional Reference No. 54 of 2011, Hon. Sam Kuteesa and 2 others v Attorney General, where it was held that public bodies to function must be fully constituted as prescribed by law.
“THEREFORE, the purpose hereof is to bring to your attention the fact that the parliamentary election held yesterday for the vacant seat of the Woman Member of Parliament for Dokolo district is null and void for having been organized by the Commission that is not fully constituted, and for that reason the winner should not be forwarded to parliament for swearing, failure of which we have instructions to drag the Commission to court for a redress and seek nullification of all the actions taken or performed by the Commission, including the said Dokolo by-election. Last but not least, take notice that the reappointment of said Justice Simon Byabakama Mugyenyi, Hajat Aisha Lubega Basajjanaku, and Honorable Stephen Tasobya can not be saved as the time within which they should have been reappointed expired many months ago. The only option available is to resign and let new faces be appointed.”
