The Speaker of Parliament Anita Annet Among last week implored Members of Parliament to re-elect the six members of the East African Legislative Assembly-EALA for purposes of continuity.
She was speaking moments before temporarily adjourning Parliament after the passing of the Organ Transplant Bill to allow her deputy Thomas Tayebwa to chair the session where the 28 EALA contestants campaigned before elections were held that day.
The National Resistance Movement- NRM to which Among is now a member after ditching her former party; the Forum for Democratic Change, had earlier passed a motion asking its MPs who constitute the EALA electoral college, to reelect its six representatives and also support the Democratic Party-DP and Uganda People’s Congress-UPC candidates.
The six NRM candidates who have since been reelected are; Paul Musamali, Rose Akol, Mary Mugyenyi, James Kakooza, Denis Namara and George Odong. DP’s Gerald Siranda was also elected while UPC’s Fred Ebil failed to make it in favour of two NRM-leaning independents; Jackeline Amongin and Veronica Babirye Kadogo.
Among’s pitch for the NRM candidates came 10 years after she lost an application in the East African Court of Justice in which, among others, she complained about the NRM’s failure to follow the dictates of the East African Community Protocol particularly article 50 that, among others, enjoins member states to elect members of EALA to as much as it is feasible, that reflect the composition of their parliaments.
Among, who had been nominated as the FDC candidate for the 2012 EALA elections, told the court in her application seeking to annul those elections that the Rules of Procedure, particularly Rule 13(1) and (2) of Appendix B which parliament had used to hold elections were inconsistent with or constituting an infringement of the provisions of the Treaty on the grounds that, they did not cater for and guarantee representation in the EALA for each of the interest groups that are mentioned under Article 50(1) of the Treaty.
She also argued that even the rules were not gazetted as mandated by the laws of Uganda when they were passed. Parliament had just amended the rules following a ruling by the same court in a case that was filed by DP’s Denis Mukasa Mbidde that stopped it from holding EALA elections before the said amendments.
In the first EALA elections of 2006, NRM and FDC agreed among themselves to send six and two MPs retrospectively without holding elections. In another court challenge in the constitutional court, Jacob Oulanyah (now deceased) had successfully challenged that procedure as inconsistent with the treaty which talks about election not the selection of EALA MPs.
“The Applicant, therefore, seeks the following declaratory orders; that the said Rules of Procedure for the election of members of the EALA 2012 are null and void, that the said Rules are inconsistent with or otherwise an infringement of the provisions of Articles 23(1), 27(1), 38(1) and 50(1) of the Treaty; that the nomination and subsequent election of the members of the EALA by the Parliament of Uganda conducted under or in pursuance of the said Rules is not only unlawful but an infringement of the Treaty and therefore ought to be set aside.”
She also prayed that the EAC Secretary General ceases to recognize the persons elected by the Parliament of Uganda to the EALA, that the Attorney General of Uganda is ordered to cause the enactment of Rules of Procedure for the Election of members of the EALA and order that fresh nominations and elections of the EALA members from Uganda be conducted under proper Rules of Procedure.
Among argued that Uganda reneged on the EAC protocol when it failed to elect MPs from all the parties that had MPs in parliament. By then parliament had six political parties; NRM, DP the Conservative Party, UPC, FDC and JEEMA.
But in their ruling, the five judges of the court that included; Jean-Bosco Butasi, Mary Stella Arach-Amoko, John Mkwawa, Isaac Lenaola and Faustin Ntezilyayo, rejected all but one of Among’s arguments. Other than accepting that the court had jurisdiction to hear cases concerning the election of EALA members, the court said most of Among’s prayers were untenable.
“It is our view that in order to conform to the provisions of Article 50(1), the election Rules must enable the establishment of an electoral process that ensures equal opportunity to become a candidate, full participation and competition for specified groupings and at the end of the process, their effective representation in the EALA.
As indicated in the said Hansard and evidenced by the aforementioned Affidavit and not denied by the Applicant, a total of seventeen nominees from various political parties and other special interest groups were presented to the Parliament of Uganda constituted as an Electoral College and nine of them were elected to the EALA.
It is also our view that, contrary to the Applicant’s assertion, there is no requirement to be deduced from Article 50(1) of the Treaty that the said election rules should provide for specific slots for the interest groups set out in Article or that they should provide for guarantees of representation, specifically of women, youth and persons with disabilities or any specified grouping provided for by Article 50(1) where such representation is not “feasible.” This Court is not clothed with the jurisdiction to determine such feasibility which is, in any event, left to the discretion of the National Assemblies of Partner States,” the judges held.
In the just concluded elections, the National Unity Platform, the biggest opposition political party in parliament abstained from the elections citing the NRM brinkmanship. Mathias Mpuuga, the leader of the opposition in parliament said they cannot participate in an exercise where the NRM was patronizing other parties by choosing both its representatives and those of the opposition.
In an interview for this story, David Lewis Rubongoya, the NUP Secretary General said they are going to drag the government to the EAC court for flouting the rules relating to the EALA elections.
However, looking at both the Among judgment and that of Abdu Katuntu who was then the Shadow Attorney General who also opposed the 2012 EALA election on grounds of lack of representation of all political parties in Parliament, the court held that it is not a must that all parties that have MPs in parliament must be represented.
While Article 50 provides for the National Assembly of each Partner State to elect nine members of the EALA, it gives no directions on how the election is to be done, except for the stipulation that the nine must not be elected from members of the National Assembly and as much as feasible, they should represent specified groupings…This is in recognition of the fact that each Partner State has its peculiar circumstances to take into account. Here, we take judicial notice of the fact that the number of political parties in the Partner States differs from one State to another.
In some of them, there are more than a dozen political parties, namely, Kenya and Tanzania. In our view, this explains why the framers of the Treaty in their wisdom, for the purposes of uniformity for all the Partner States used the word ‘various’ to allow for the diversity in their circumstances,” the ruling read in part.
It is palpably clear to us, and we have no doubt in our minds, that…the Rule spelt out that the various political parties represented in Parliament, shades of opinion, gender and other special interest groups, who wished to contest for the EALA, were free to do so.
The process and procedure for nomination, campaigns and subsequent election, in any event, guaranteed the participation of any interested person and we have seen no evidence to the contrary.” It adds.
Other than NUP, Harold Kaija who was the candidate for FDC and Gilbert Agaba who was narrowly defeated by Gerald Siranda of the DP by just 23 votes have also said they are going to challenge the election. URN
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