I had sought to remain out of this debate but now feel it is time to put some things into their proper perspective.
The overall guidelines which were used in accepting candidates to contest for EALA were not determined by the UPC Parliamentary Committee but by the UPC Headquarters. This, in fact caused me a lot of discomfort as I had initiated a process which, in my own opinion was far more accommodating. All who contested or even sought to contest will attest that I did not sign the nomination forms of any of the UPC Candidates who were seeking the 20 signatures from MPs required by the Rules. Having known that there were more than 9 UPC members interested in EALA and the Rules provided that I could only nominate/sign 9 forms I opted to go for a strategy that would allow all who so wished to have an opportunity to offer themselves as candidates. I have therefore retained in my possession a form which has 15 signatures (the remaining 5 were to be the remaining UPC MPs who hadn’t as yet signed) but has no candidate name as it would have been appropriate to fill in the name after primaries were conducted and a UPC candidate chosen. It would also ensure that the UPC candidate would have the signatures/backing of all UPC MPs on their nomination form.
Prior to the close of the gazetted nomination days I had a couple of meetings with Nandala Mafabi (LOP) on the course of action the Opposition was due to take. I had earlier been requested by the UPC Whip to sign an Affidavit for UPC MPs which was due to be taken to the East African Court of Justice. At the meeting the LOP reaffirmed the boycott of the process but at the same time showed me a letter by the FDC SG, Alice Alaso which sought to request more time to conduct ‘primaries’ for FDC. Later that day I was approached by several FDC members to sign their forms as they were interested in contesting for the EALA seats where I assured them that I would not sign as I wished to see an open, transparent and acceptable process within my own Party and taking into consideration the opposition position of a boycott and that I was requested to sign an affidavit on behalf of UPC to that effect, whereby my signing any nomination may appear contradictory to the affidavit. It was at this point that together with Hon. Benson Obua-Ogwal that we appended our signatures on a blank form as a fallback or safeguard position having earlier been part of the spirited efforts to derail a private agreement our ‘opposition’ colleagues had struck with the NRM on the allocation of EALA slots.
I’m truly surprised and amused that our ‘opposition-ness’ is now being questioned yet at the first opposition meeting after the first round of serious disagreements on EALA within the opposition taking place in Parliament, I put it straight to LOP and FDC that I/we felt really betrayed about the deal they had with reached with NRM which would send 2 FDC to EALA yet looking at the Treaty we could at best send 5 opposition members to EALA and at worst send 3! At that stage it appeared possible to be able to get consensus on 3 opposition members to EALA. The disagreements on the floor of Parliament centered on the same issue of representation and we had to vehemently deny that the position by FDC that the opposition accepted 2 slots was the agreed position of all opposition Parties! I at one point was able to disrupt a discussion taking place in the parliamentary lobby where 2 FDC frontbenchers were assuring the Leader of Government Business and NRM Secretary General that all opposition Parties will be taking part in a joint ‘opposition’ primary. The short of it is that there were several discussion going on in and amongst Parties and I opted to carry out discussion with DP and even the Independent ‘caucus’ since at this point both FDC and NRM were arguing against Independents being in EALA. I can honestly state that the delay in endorsing the 6 or 7 NRM & 2 FDC to EALA was brought about really by UPC and DP MPs on the floor of Parliament to argue for their representation. For those in doubt please examine the excerpt of the Hansard of 15 March 2012:
MR ODOI-OYWELOWO: Mr Chairman, Appendix B: “Rules of Procedure for the election of Members of the East African Legislative Assembly.”
(i) Insert the following –
THE DEPUTY CHAIRPERSON: Honourable Chairman, is it your statement that you have consulted with everybody in this House and that is the agreed position; so that I know what to do immediately.
MR ODOI-OYWELOWO: Yes, I have.
THE DEPUTY CHAIRPERSON: Okay. Now we will listen carefully to what he is going to read.
MR ODOI-OYWELOWO: We have consulted both the Opposition and the Government and we have agreed to the position I am going to read:
The consultation the Committee Chairman held with the Government and the Opposition brought about the following redraft:
We propose to insert a new rule to read as follows:
“(1) The ruling party shall nominate at least six candidates from among its Members.
(2) The Opposition shall nominate at least two candidates from among…” Mr Chairman, the phrase “at least” is dropped.
“(1) The ruling party shall nominate six candidates from among its Members.
(2) The Opposition shall nominate two candidates from among its Members.
(3) A person independent of a political party or organisation shall be elected as a Member of the East African Legislative Assembly.
(4) All nominations shall as much as it is feasible reflect and take into consideration the youth, gender and Persons With Disability.”
The ensuing debate brought out clearly that their was no unanimity between the opposition considering the both UPC and DP were not consulted and the position ‘agreed’ with Government was reached by FDC purportedly on behalf of the whole opposition. The original draft had it that the Ruling Party will nominate at least 8 members from which 6 will be voted and the Opposition to nominate at least 5 members (representing the 5 opposition Parties) where 2 will be voted. Despite strong opposition a FDC frontbencher unashamedly went on the Hansard stating the following:
MR EKANYA: Whereas hon. Amongi is seeking clarification, I think that the formulation by hon. Fox Odoi talks about the Opposition and Government. The Opposition under the current arrangement have a caucus, which is an informal arrangement and not necessary to put in the rules. I think the Leader of the Opposition could call a caucus of all the parties in the Opposition and they have their internal nomination and present the two to the House.
The import of the above statement should not be lost considering the the Deputy Speaker had put it to Hon. Fox Odoi: “is it your statement that you have consulted with everybody in this House and that is the agreed position” and clearly some of the Opposition had not been consulted, and the “internal nomination” by the “caucus” would certainly have presented 2 FDC members where the only voting in the House would really be for the Independent Member to EALA. Despite this betrayal and deception, UPC and DP MPs handled themselves with decorum and avoided issuing disparaging statements which sought to undermine their erstwhile opposition colleagues. Soon afterwards FDC now swung from willingly accepting 2 FDC seats on behalf of the opposition to becoming champions of ALL Parties to be represented in EALA with the exception of Hon. Abdu Katuntu who throughout maintained that the Treaty required the various political parties to be represented. Personally I have a hard time believing that this remembrance by my FDC colleagues that others also existed in the Opposition was wholly principled on representation but rather to capture headlines and embarrass Government.
At the time of the opposition walk-out, the disputes were on rule 13 of Appendix B which stated:
Election of members of the Assembly.
The members to be elected to the Assembly shall include the following-
(a) six members from the party in government whose composition shall reflect gender, the youth and persons with disability;
(b) two members from the opposition parties whose composition shall reflect gender, youth and persons with disability; and
(c) one member from candidates independent of any political party or organisation.
The other area of contention was on schedule 4 of Appendix B which provided the for in which the ‘segregated’ ballot paper would take in order to operationalise rule 13 of Appendix B above.
Throughout the debates I argued against propotionalism as the Hansard will attest but all along the cases which had been brought to the EACJ were being quoted that at times the lawyers in the House seemed to make matters more complicated than they were. That said, there were cases which kept cropping up. Among them were Prof. Anyang Nyong’o vs AG and Jacob Oulanyah vs AG. In the Anyang Nyong’o case, (used by NRM) the formula in determining the slots to EALA was done by taking the number of seats held by a particular Party, dividing it by the total seats in the House and multiplying by 9. Under this formula FDC were at about 0.8 and rounding brought them to 1 seat entitlement. Independents came to 1.03 but raised the issue of how Independents can be determined outside the House and other issues. On this matter, I had to point out that whereas Uganda only has 6 Parties in Parliament, Kenya has 23 Parties and therefore it was not feasible to have all represented in the Assembly.
The Jacob Oulanyah case was being quoted mainly by the Independents because Jacob Oulanyah attempted to stand as an Independent candidate in 2006 and the court found that Appendix B “omitted to provide for ‘consideration of other shades of opinion in the House when electing Members to the East African Legislative Assembly representing Uganda.’ Furthermore the Judgement went on to state “……. this omission is contrary to Article 50(1) of the Treaty which provides that the elected members of the EALA representing a Partner State shall be elected by the National Assembly of the Partner State…….”
Without getting into the political rhetoric surrounding the Mbidde case, it is important that we dispassionately examine the key issues of the ‘momentous’ ruling of 10th May 2012 which ordered that:-
1. The Parliament of the Republic of Uganda, the Attorney General of the Republic of Uganda, the EALA are restrained and prohibited from conducting and carrying out any elections of members to the EALA, assembling, convening, recognising, administering Oath of Office or otherwise howsoever presiding over or participating in the election of the Representatives of Uganda and recognising of any names of nominees as duly nominated and elected to the EALA until the Rules 11(1) and Appendix B r 3, 10 and 11 of the Rules of Procedure of the Parliament of Uganda, 2006 are amended by the Parliament of the Republic of Uganda to conform to the provisions of Article 50 of the Treaty for the Establishment of the East African Community.
It is important to note that in the Oulanyah Case the Constitutional Court on 30th May 2008 declared , inter alia that:
“2. Rule 11(1) Appendix B rule 3, 10 and 11 of the Parliamentary Rules of Procedure of Parliament are inconsistent with Article 21(1), 2 of the Constitution.
3. Rule 11(1) Appendix B rule 11(1) of the Parliamentary Rule of Procedure is inconsistent with Article 74(4)(5) of the Constitution and is null and void.
4. Rule 11(1) Appendix B rule 3, 10 and 11 of the Rules of Procedure of Parliament of Uganda is inconsistent with Article 89(1) and 94(1) of the Constitution and is therefore null and void.
5. The Parliament of Uganda as the Electoral College did not carry out any election of members of the East African Legislative Assembly as required by Article 50 of the Treaty and Article 89 of the Constitution….”
It should be clear to any seriously minded individual, let alone a law student that Mbidde had effectively secured an Injunction on the process under the 2006 Rules of Procedure. It is also important to note that the Attorney General had applied for a stay of execution of the Court Order (Oulanyah Case) which was granted on 23rd June 2008. The AG also appealed case on 12th May 2009 and the appeal has never been heard to date.
The basis of the Mbidde case was that the EALA elections were to be based on the 2006 Rules of Procedure which were: –
“….inconsistent with and contravene Articles 29(1)(e) of the Constitution of the Republic of Uganda, to the extent that they limit the freedom and right of the Democratic Party and its members including the second applicant (Mukasa Mbidde) in vying for elections to the East African Legislative Assembly.”
“…..inconsistent with and contravene Articles 21(1) and (2) of the Constitution of the Republic of Uganda, to the extent that they discriminate against the opposition political parties including the second applicant (Mukasa Mbidde) in vying for elections to the East African Legislative Assembly.”
“……inconsistent with and contravene Article 89(1) and 94(1) of the Constitution of the Republic of Uganda to the extent that the said Rules of Parliament do not allow the Members of the Parliament of Uganda to elect the members of EALA.”
“…… under Rule 2(2) the interpretation section thereof do not define in its true sense of the word as they provide for approval and not election.”
“….. an infringement of Article 50 of the Treaty for Establishment of the East African Community.”
Order was also sought “to ensure that the Parliament of Uganda amends its laws in order to make them conform to Article 50 of the Treaty for the Establishment of the East African Community.”
From the above Mukasa Mbidde’s contention was with the 2006 Rules of Procedure of Parliament and that his specific concerns are as highlighted above. The question would therefore have to be whether the amended Rules of Procedure address the matters which Mukasa Mbidde had brought to the attention of the EACJ and sought its intervention? As I stated earlier, FDC were originally not averse to the 6 NRM, 2 FDC and 1 Independent to represent Uganda in EALA. When they later embraced party representation it resulted in the position which I reproduce below leading to the walkout:-
POSITION OF THE OPPOSITION IN PARLIAMENT ON THE RULES OF PROCEDURE ON THE EALA ELECTIONS
Rt. Hon. Speaker and Hon. Members, the Opposition had a Meeting today Tuesday 15th May 2012; in respect of the Rules governing the EALA elections and observed that:
(i) Parliament consists of 6 Political Parties and Independents.
(ii) From the above observation it is clear that it is feasible for each Political Party to be represented in EALA.
Therefore, our position as the Opposition is:-
(a) that Political Parties represented in Parliament should each have a slot, i.e FDC, UPC, DP, JEEMA, CP and NRM. The Rationale is Party Platform and Art. 50 of the Treaty.
(b) What is now in contention is the three (3) remaining slots, which we propose to be shared as follows:
(i) One slot should go to Independent.
(ii) the remaining two slots be shared by the Ruling Party and the Official Opposition.
The Parties carrying out elections as above should take into consideration gender and other special interest groups.
Nathan Nandala-Mafabi, MP
LEADER OF OPPOSITION
For those who may not be familiar with the Treaty Article 50(1) which provides that:-
“The National Assembly of each Partner State shall elect, not from among its members, nine members of the Assembly, who shall represent as much as is feasible, the various political parties in the National Assembly, shades of opinion, gender and other special interest groups in that Partner State, in accordance with such procedure as the National Assembly of each Partner State may determine.”
For the record the ‘offending’ Rule 11 (2006) states:
11. Election of Members of the East African Legislative Assembly
(1) Members of the East African Legislative Assembly representing Uganda shall be
elected in accordance with the rules set out in Appendix B, and such
representation shall reflect the proportional Party Membership based on the
numerical strength of the Parties in the House and take into consideration gender
and other shades of opinion.
(2) Members of the Assembly shall report to Parliament on the activities of the
Assembly in accordance with the rules set out in Appendix C.
The position as it now stands in the amended Rules of Procedure can be got from the Hansard, which states the following:
MR ODOI-OYWELOWO: Mr Chairman, the sub-title is: “Election of Members to the East African Legislative Assembly”. We propose that we delete rule 11 and insert the following:
“(1) The nine Members of the East African Legislative Assembly representing Uganda shall be elected by Parliament not from among Members of Parliament, representing, as much as it is feasible, the various political parties represented in the House, shades of opinion, gender and special interest groups in Uganda;
(2) The election of the Members to the East African Legislative Assembly shall be held in accordance with the rules set out in Appendix B to these rules;
(3) Members of the Assembly shall report to Parliament on the activities of the Assembly in accordance with Appendix C”.
From a layman’s point of view, I do not think the new Rule contravenes the Treaty in anyway or contradicts the wording or spirit of the Treaty. Furthermore the aspect in question, that is whether or not, where feasible, ALL Parties represented in Parliament should be elected to EALA has been transferred by Appendix B to “the political parties and other members of Parliament” dependent on the results of their “consultations and consensus” and where this fails, by a vote of Parliament. My own personal view was that it was possible to reach a consensus for 5 NRM, 1 FDC, 1 DP, 1 UPC and 1 Independent to represent Uganda in EALA or else a 4 NRM, 2 FDC, 1 DP, 1 UPC and 1 Independent. Either of these two formulae would address the matter politically though could not forestall the current return to the EACJ based on interpreting Article 50 of the Treaty. At the time of the opposition walk-out there was a lot of talk that the Mbidde Judgement in the EACJ could prevent the elections taking place until the position presented by Nandala Mafabi was achieved or something close to it but where ALL political Parties represented in Parliament would have EALA members. It was really after discussing with Norbert Mao following Mukasa Mbidde’s nomination that any thoughts of actions hinged on this case fell through since the Court had effectively addressed all that Mukasa Mbidde had brought to it. The strong argument from Norbert Mao was that since the Rules no longer directly infringed on the right to participate, the remaining hurdles lay in the process of elections and only through participation will the flaws become apparent. The only real argument against the Rules as they now stand could possibly the lack of specificity rather than any directly offensive Rule or clause.
There were certain aspects of Appendix B of the Rules of Procedure which remain unchanged and include the procedure of nomination and how a nomination is withdrawn. On this point I need to state that Olara Otunnu’s letter was two days late and did not take into account the procedure of withdrawal. I personally feel that it would have been far better to summon a joint meeting of the Cabinet, the Parliamentary Committee and the UPC Electoral Commission before writing a total ineffectual letter and following it up with a even more ineffectual letter written by an Acting Secretary General. If advise could have been received this would not have happened.
Let me end with the a couple of quote from the Hansard without much debate taken which have been taking place on the floor of Parliament. At one point the LOP had to resort to reading from the Law “… maybe it will help us to understand. It says: “The Leader of “the Opposition means the Member of Parliament who is the leader in Parliament of the party in opposition to government and having the greatest numerical strength in Parliament.” I may not be taking your view but I have found myself in the position by law. ” In my layman understanding this actually means “… the leader in Parliament of [FDC]” and carries with it some perks because of “having the greatest numerical strength in Parliament”.
In answer, I stated the following:
MR JAMES AKENA: Thank you, Madam Speaker. The clarification I am seeking from you, the Leader of the Opposition, is this: Do you, in all honesty, feel you can speak on behalf of all of us who may have come here on a different political platform? We have our own political party and standards.
What I have seen in other parliaments – in the British Parliament – we have the government side, the Leader of the Opposition and other parties responding to issues because not in all instances is our position, as the Opposition, unanimous. Uganda Peoples Congress may have a different view on maybe education and health compared to FDC. We recognise the role of the Leader of the Opposition but we must also be recognised as a separate political entity in this House. We must be able to speak and have our own voice heard on issues that concern us. Thank you.