Byabakama’s EC on trial as polls near

There are always flashpoints regarding Uganda’s elections, and the biggest this time concerns the enforcement of the standard operating procedure (SOPs) that were instituted by the government to guide the conduct of elections in view of the Covid-19 pandemic. 

The Public Health (Control of Covid-19) (Amendment No.3) Rules, 2020, issued by the Ministry of Health on November 9, provides that gatherings for purposes of political meetings should not exceed 200 persons.  The EC, at the beginning of the electioneering period, issued guidelines which were to be followed by candidates.  Therein, candidates were prohibited from conducting processions along public roads, through towns and trading centres.

The EC also decreed that rallies should only be held at designated venues as per the harmonised campaign programmes and also attendees should observe SOPs, including social distancing, hand washing, and the wearing of facemasks.

How practical this was going to be was a matter of debate, and all presidential and parliamentary candidates have in one way or the other violated the SOPs. 

EC in the spotlight
The EC has been criticised for literally sanctioning a crackdown on the Opposition while ignoring their National Resistance Movement (NRM) opponents, who in many cases, have been shown disregarding the SOPs, lending credence to the accusation that the electoral body, instead of being a referee, is siding with the ruling party.  

“We are dealing with the NRM that is in charge of the pitch and brings the ball as well,” Mr Muhammad Nsereko, the Kampala Central MP, who is running for the same seat as an Independent, says. 

“They award themselves penalties anytime.”

Though the EC vehemently denies accusations of being in the pockets of the NRM, the Opposition insists there is enough circumstantial evidence to prove the allegations. 

On December 12, for instance, the EC wrote two separate letters to the two Opposition presidential candidates - Patrick Oboi Amuriat of the Forum Democratic Change (FDC) and Robert Kyagulanyi, alias Bobi Wine, of the National Unity Platform (NUP) – accusing them of violating the SOPs. 

Justice Byabakama, who signed off the letters, asked both politicians to appear before the Commission on December 14 without fail.  

No sooner had the EC wrote the letters than Mr Museveni, who was presiding over a prayer event at State House Entebbe, said he wasn’t happy with the way the electoral body and the police were nonchalantly looking on as Opposition politicians disregarded the anti-Covid-19 measures.   

“If I stand up to speak, it means my supporters are infecting one another. This is criminal. I don’t know what the EC of Justice Byabakama is doing to allow this nonsense to happen. I am not happy with Byabakama and the police,” Mr Museveni said.

While Mr Kyagulanyi agreed to temporarily halt his hunt for votes and met with the EC last Tuesday, not much with regard to adherence with the SOPs was announced to have come out of the meeting. 

Both parties agreed to disagree, with Mr Kyagulanyi accusing the EC of shyly looking on as the security agencies disrupt his rallies across the country, while the electoral body insisted that if he doesn’t want trouble, he should follow the SOPs.

Immediately after the meeting, the Kyadondo East MP, for the umpteenth time, asked Justice Byabakama to tender in his resignation on grounds that he has miserably failed to do his job. 

“The NRM camp is holding rallies and campaigns but they are not being called out. I have told Justice Byabakama that he has failed,” Mr Kyagulanyi, who has positioned himself as a leading Opposition candidate, said. 

Indeed, though, Mr Museveni has by and large not addressed mammoth rallies, his supporters have been carrying out processions and jamborees where he is holding meetings for NRM leaders and mobilisers without meeting the full wrath of police as their Opposition opponents do.      

“These elections were clearly ill-advised. It’s very hard to follow the SOPs,” Prof Sabiti Makara, a lecturer at the Department of Political Science and Public Administration at Makerere University, says. “Nobody is observing the SOPs now and even on Election Day, people will come in huge numbers to vote. How will they maintain the social distancing?” he asks.  

He adds: “They should have postponed the elections like it was done in Ethiopia. Otherwise, people are going to die.” 

In early December, Mr Kyagulanyi, upon his request, had his first interaction with Justice Byabakama’s Commission after security agencies foiled his rallies in Kayunga District and the eastern city of Jinja.  

In the meeting, which went on for hours,  Mr Kyagulanyi, by way of evidence, showed Justice Byabakama and his team photos of police firing at his unarmed supporters, his car sub-emerged in a cloud of teargas, images of the injured, among others.  

Justice Byabakama’s response of saying that he had not noticed that security agencies were thwarting Mr Kyagulanyi’s rallies because he had no DSTV to watch news left many astounded.

If Mr Kyagulanyi has been seeking an audience with the EC and also complying with the electoral body’s summons, then FDC’s Mr Amuriat has given the Commission a sample of defiance that has left them at sixes and sevens.  

Although through sheer force, security forces have foiled many of the mini-rallies that Mr Amuriat had carefully planned as opposed to the large gatherings, the FDC president has never written to the EC complaining like Mr Kyagulanyi has done.  

Instead, Mr Amuriat, who is campaigning barefoot as a form of protest, has laughed off the idea that he should be reporting the incidents. He says nothing much will be got from that since, in his view, the police and the EC are both controlled by Mr Museveni, who he accuses of not being willing to give up power even if he is beaten in the polls. 

“I’m not a cry baby,” Mr Amuriat, a former Kumi County MP, has insisted throughout the campaign. “We knew getting rid of the junta was never going to be easy.”

In response to the EC letter which required him to personally appear in Kampala, Mr Amuriat, who was campaigning in the eastern district of Namayingo, handwrote a note on Wednesday, telling Mr Byabakama that he could not make it to meet with the Commission because of his tight campaign schedule since the days in which they are supposed to campaign were also running out.

“I regret to inform you that I will not be able to attend the scheduled meeting today December 16, due to campaign commitments in Namayingo and Mayuge districts,” Mr Amuriat wrote. 

“I have accordingly delegated a team of senior FDC party officials led by our secretary general Nathan Nandala Mafabi to attend on my behalf. Kindly note that the only available time in my schedule is Christmas Day, December 25 after 11.00 am…”

It’s not clear how the EC will deal with Mr Amuriat but when contacted, Mr Paul Bukenya, the Commission’s acting spokesperson, said they had received the candidate’s team that he had delegated but they would still need to meet him in person. 

“The Commission will soon be communicating to Mr Amuriat and you [media] will also know its position,” Mr Bukenya said in a phone interview recently. 

The idea that the EC could annul Mr Amuriat’s candidature over refusing to show up when summoned has been talked about, but FDC lawyers insist they are on solid legal ground. 

“The EC should know a candidate can delegate to his lawyers or to any party top official, who can be the secretary general or anyone of his choice,” Mr Isaac Kimaze Ssemakadde, one of the FDC’s lawyers, said. “The letter is what the EC deserves. That’s the highest form of defiance that it [EC] deserves for being biased.”

Justice Byabakama's rise to the EC top job 

Justice Byabakama’s appointment as Badru Kiggundu replacement when Mr Museveni tapped him from the Court of Appeal in November of 2016, according to critics, buttressed the idea of how he wants to remote-control the electoral body.

Before he was appointed by President Museveni as a High Court judge in 2008, Justice Byabakama was a senior prosecutor in the office of the Director of Public Prosecutions (DPP).  

Before the 2006 presidential elections could happen, it was Justice Byabakama who led the prosecutions in prosecuting Dr Kizza Besigye, who was FDC’s presidential candidate, in the infamous rape trial which was dismissed with contempt by now retired High Court judge John Bosco Katutsi.  

“The evidence before this court is inadequate even to prove a debt; impotent to deprive of a civil right; ridiculous for convicting of the pettiest offence; scandalous if brought forward to support a charge of any grave character, monstrous if to ruin the honour of a man who offered himself as a candidate for the highest office of this country,” Justice Katusti ruled in 2006.

The quick rise of Justice Byabakama from a prosecutor to a High Court judge and to being appointed as a Court of Appeal judge in 2015 and in 2016 being appointed EC chief, his critics say, Mr Museveni has been rewarding him for prosecuting Dr Besigye.

“This is a person who wanted to interfere with our elections by cooking up charges against a candidate [Dr Besigye],” Mr Ssemakaddde said. “How can he qualify to be the chairman of the EC?”   

When Byabakama took over from Kiggundu as EC chairperson, Mr Museveni also simultaneously appointed commissioners Aisha Lubega, Mustapha Ssebaggala Kigozi, Peter Emorut, George Piwang and Stephen Tashobya to complete the team.

Justice Byabakama’s appointment, according to sources, affected the power dynamics at the EC since he was feared for being close to Mr Museveni yet at the time, the most powerful persons at the Commission were then Secretary Sam Rwakoojo and former spokesperson Jotham Taremwa. 

In July, Rwakoojo, Taremwa, Pontius Namugera (IT director), Joseph Lwanga (finance and administration director), and Godfrey Wanyoto, Edgar Kasigwa (Data department) Jordan Lubega (networks administrator) and Charles Musuza (data section staffer) left their jobs under mysterious circumstances,  with various media reports indicating they were fired over corruption. But Justice Byabakama choose to cover up.  He said that they had resigned over what he termed as “personal reasons.”

In September, however, Mr Museveni watered-down Justice Byabakama’s narrative when he revealed how he had personally fired Mr Rwakoojo and his team on grounds of corruption. 

“The corrupt team that was in the EC refused to procure this system,” Mr Museveni said in reference to the bio-metric system, which he claims will reduce electoral malpractices. 

“This will end this sad story of the anti-democratic forces at least as far as the problem of multiple voting and multiple registrations is concerned…”

Although Justice Byabakama has insisted that he can summon Mr Museveni if he is seen to be flouting the SOPs, many contend that with reforms that the Opposition have always sought for in appointing officials at the EC being ignored, the belief that the Commission is in bed with the NRM will never go away. 

“As long as it’s the President who is appointing the bosses at the EC, it’s very hard for people to believe they are independent.”  Prof Makara says. 

“The other day [Justice] Byabakama said he had consulted the President on some issues related to the elections. So how can people believe he is independent?”

In February, legal effort by litigious lawyer Male Mabirizi in which he wanted the High Court’s Civil Division to relinquish Justice Byabakama of his job as EC chairman on grounds that he was holding two positions at the same time, failed. Mr Mabirizi had argued that Justice Byabakama had never relinquished his position as a justice of the Court of Appeal upon being appointed as the chairperson of the EC, but Justice Musa Ssekaana dismissed it on a technicality.

“The application should have been an application for judicial review since the applicant contends that Justice Byabakama never relinquished his position of Justice of Court of Appeal upon appointment as the chairperson of the EC,” Justice Ssekaana ruled.

“The applicant [Mr Mabirizi] has opted to run away from the strict rules of the procedure after he realised that his application was well beyond the three months’ period prescribed for any application for judicial review.”
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