Following the declaration of the 2016 presidential election results by the Electoral Commission, http://www.ec.or.ug/, are there any real prospects of successfully challenging the election before the Supreme Court of Uganda, in particular that a candidate declared by the Electoral Commission elected as President was not validly elected?
By Article 104 of the Constitution of the Republic of Uganda 1995, “any aggrieved candidate may petition the Supreme Court [of Uganda] for an order that a candidate declared by the Electoral Commission elected as President was not validly elected.”
The Supreme Court is required to inquire into and determine the petition expeditiously and shall declare its finding “not later than thirty days from the date the petition is filed.”
The Court (at least in theory) may annul the election and order that a fresh election shall be held within twenty days from the date of the annulment if the following grounds are proved to the satisfaction of the Court—
1. noncompliance with the provisions of the Presidential Elections Act (chapter 142) and that the noncompliance affected the result of the election in a substantial manner;
2. that the candidate was at the time of his or her election not qualified or was disqualified for election as President;
3. that an illegal practice or any other offence under the Presidential Elections Act was committed in connection with the election by the candidate personally or with his or her knowledge and consent or approval.
Among others, Dr Kizza Besigye of the Forum for Democratic Change (FDC) party is an “aggrieved candidate”. He indicated that he intended to petition the Supreme Court of Uganda for an order that the candidate declared by the Electoral Commission elected as President was no validly elected.
Unfortunately, armed men surrounding his residential house since 19 February 2016, without any court order, have prevented him from exercising his constitutionally guaranteed rights including freedom of movement, expression, association and access to the Supreme Court of Uganda to challenge a recent presidential election within ten days after the declaration of the election results. This is the “fundamental change” ushered in Uganda in 1986! Disrespect for constitutionalism, rule of law and human rights, https://www.hrw.org/africa/uganda.
According to retired Justice of the Supreme Court of Uganda and a former Judge of the African Court on Human and Peoples’ Rights, George Wilson Kanyeihamba, available evidence shows that the 18 February election in Uganda was rigged. He said: “With the massive disenfranchisement of voters in opposition strongholds like Kampala, Wakiso, Rukungiri and Gulu, how can that election be upheld. It was a sham,”
He further said: “We know that the judiciary isn’t independent but by filing the petition, you expose the judges because the vote rigging was glaring. No reasonable judge would uphold such an election.” See Besigye running out of time to challenge poll result, http://observer.ug/news-headlines/42797-lawyers-besigye-running-out-of-time-to-challenge-poll-result
In its Preliminary Report dated 25 February 2016, the Uganda Human Rights Commission, http://www.uhrc.ug/preliminary-report-national-elections, identified what it described as “general challenges” during the electoral process as follows:
-Late delivery of polling materials
-Poor facilitation of polling officials
-Limited voter education
-Inadequate capacity of some polling officials to handle the polling process
-Use of unreasonable and disproportionate force by some security agents that may result in loss of lives
-Unruly voters who instead of reporting the challenges they were facing at the polling stations, resorted to blockading roads, burning tyres and insulting polling officials and Observers
-Polling stations located in congested places
The European Union observers identified several other issues which undermined the principle of free and fair elections including “intimidation and harassment of opposition by police and law enforcement bodies, as well as arrests of supporters and voters were reported from more than 20 districts”, http://www.eueom.eu/files/pressreleases/english/PreliminaryStatement_20160220.pdf.
Will the Supreme Court annul the election if any aggrieved candidate submits a petition within 10 days after the declaration of the election results?
If the Court orders a fresh election to be held within twenty days from the date of annulment, will the next presidential election in April 2016 be anywhere close to being “free and fair”?