Why President Museveni won’t or can’t implement electoral reforms ordered by Uganda’s Supreme Court

Having concluded that Uganda’s electoral law is greatly flawed, the country’s supreme court ordered President Museveni’s regime to carry out extensive electoral reforms. The supreme court observed that electoral reforms are a prerequisite for free, fair, and credible elections. The apex court further observed that the 2016 presidential elections were marred with gross irregularities and electoral malpractices. In conclusion, the supreme court opined that the process fell short of constitutional and internationally accepted standard of free, fair, and credible elections.

To create conditions for a uniform and level playing field for all presidential candidates, the supreme court ordered the regime’s attorney general to carry out electoral reforms within two years and report progress to the apex court. The supreme court decision was delivered on 31 March 2016, hence the two-year period lapses on 31 March 2018. [[1]]

However, instead of acting on the order of the supreme court, the attorney general moved on to amend article 102 (b), a provision that had no nexus with the various orders of the supreme court.  Yet, without shame or embarrassment, the attorney general argued that the “75-year age limit” constitutional amendment was in compliance with the orders of the supreme court in the said Mbabazi vs. Museveni presidential election petition of 2016.  In response to the attorney general’s silly argument advanced to justify the amendment of article 102(b), Asuman Bisiika offered pro bono advice to President Museveni and urged him to beat the 31 March 2018 dateline. [[2]] Similarly, Crispin Kaheru begged President Museveni to comply with the orders of the supreme court.  Kaheru stressed that the reforms are necessary to strengthen the credibility of the electoral process in the country and to guarantee positive participation by the citizens in the electoral process. [[3]]

The supreme court is one of many institutions to have voiced concerns about the current flawed electoral process. Since 2001, other institutions have included national and international election observers, Uganda’s various political parties, civil society organisations and private individuals. These institutions proposed electoral and constitutional reforms as necessary tools to guarantee credible, free, and fair elections.  Yet President Museveni has consistently neglected, refused, or failed to order his attorney general to make the necessary reforms as directed by the supreme court. Why?  

This brief commentary seeks to explain why President Museveni will never carry out the necessary electoral reforms. To do so would amount to Museveni committing political suicide for he will lose all subsequent elections. As a strong believer in the zero-sum game theory, Museveni, as an experienced and seasoned manipulator, kleptocrat and dictator cannot permit electoral reforms that will limit his current advantages in successfully rigging presidential and parliamentary elections. Fundamentally, Museveni is in power not because of the electoral process. It is because of his military victory and control over the National Resistance Army (NRA), his personal army.

To understand President Museveni’s mind-set and his deep distrust of parliamentary democracy and lack of respect for human rights, we must go back to the December 1980 parliamentary elections.  The experience gained from that election taught President Museveni core lessons on election rigging.

During the 1980 parliamentary elections, Museveni was the leader of the Uganda Patriotic Movement (UPM), a fringe political party. He was also Deputy Chairman of the Military Commission government. Theoretically, Museveni was in a powerful position, effectively holding the position of Vice-President of the country and Deputy Minister for Defence. Unfortunately, he was outwitted by his boss, Paulo Muwanga, Chairman of the Military Commission and Minister for Defence. Muwanga used the Uganda National Liberation Army (UNLA) to manipulate and rig elections for the benefit of the Uganda Peoples Congress (UPC). Years later, Paulo Muwanga would pay a heavy price for outsmarting Museveni in the election theft of 1980.

Paulo Muwanga was in charge of the Military Commission government. By virtue of being the head of government, he exercised effective control over the Electoral Commission (EC). He appointed the chair and all members of the EC. The control of the EC by Paulo Muwanga guaranteed that the UPC won 74 seats, which represented 40 percent of seats in the national parliament. This massive success for the UPC was attributed to Muwanga’s methods of handling the electoral process. The overall parliamentary results were as follows: UPC 74, Democratic Party  (DP) 51, UPM 1, and Conservative Party (CP) zero.

There were credible allegations of rigging and various forms of malpractices, before and during elections, committed by state agents and EC officials, in favour of the UPC. The election malpractices affected DP, UPM and CP but the most aggrieved party was, however, the DP. Some defeated DP parliamentary candidates challenged the results in court. However, the court process was so deliberately slow that when the UPC government was ousted on 27 July 1985, some of the petitions were still pending in court. UPM parliamentary candidates, including Yoweri Museveni, did not go to court to challenge the results of the elections.  Instead Museveni chose war.

To secure the presidency, Museveni waged a five-year war. He interpreted his success in the 1981-1986 vicious war as an investment. Thus, on coming to power, Museveni did not only consider control of Uganda as a return on his investment, based on his alleged personal sacrifices, but because of that victory, the Ugandan state became his private property or estate. As long as he enjoyed the monopoly on the use of violence, through the National Resistance Army (NRA) or other militias, Museveni saw no need for elections or parliamentary democracy.  He would only go through the motions of elections to appease the international community—his strongest political support base.

In retrospect, starting a war in 1981 was an excuse for his defeat at the polls. With or without election rigging by the UPC, Museveni’s UPM had no possibility of winning elections in 1980. As a party, UPM was formed on 4 June 1980, and launched at City Hall in Kampala two days later, less than six months to the election day. Many of its founding members, who included Yoweri Museveni, Eriya Kategaya, David Livingstone Ruhakana Rugunda, Amama Mbabazi and Amanya Mushega, had just returned from exile where they had lived, as refugees, since the early 1970s and were not known to majority of voters. 

Based on his 1980 election experience, President Museveni knew then that organising presidential or parliamentary elections is not only about controlling and managing events on election day, or indeed during the campaign period; but structures—both state and party institutions—must be emplaced long before election day to ensure victory.

From 1980 when he lost the elections, until 1996 when he conducted his first polls and won handsomely, Museveni had 16 years to mobilise resources and plan for an election process that guaranteed his victory. He also realised that successful elections are as much about establishing (and changing) electoral laws, as they are about gerrymandering by among other means, (re) drawing constituency boundaries, control of registration of voters and retaining the right to disqualify opposition candidates without giving reasons.  Museveni, through the EC, controlled the totality of the electoral process, from the demarcation of constituencies through campaign voting, to the announcement of the election results.

Significantly, Museveni did not wish to give an excuse or create conditions that an aggrieved opposition member may use to justify another war. He made sure there were provisions for managing, rather than settling, electoral disputes during and after voting – all within a “legal framework”, however flawed it may have been. If or when the electoral dispute is taken to court, President Museveni needed a judiciary that is perceived as independent and transparent. The court will then, based on this perception, authoritatively decide on the election petitions. The process, Museveni believed, would provide his government with democratic legitimacy.  It is some of these flaws the supreme court ordered to be rectified.

It was in September 1995, approximately six years after the Constituent Assembly was appointed that the 1995 Constitution of Uganda was adopted. Article 105(2) of the constitution set two terms, of one-five-year term, for the incoming president. [[4]] President Museveni’s ten-year tenure, from 1986-1996, was a trial or dry run. His supporters presented the ten-year military dictatorship as a bonus to Museveni for his “sacrifice” in “saving” Uganda.

In a nutshell, Museveni fought many wars since 1972, robbed banks, and kidnapped political opponents, including doctors, nurses, teachers and students. He also attacked military barracks and police stations, killed many Ugandans and committed all manner of crimes to become President of Uganda. He is not going to allow minor things like election rigging to remove him from the presidency, a project he invested so much in terms of lives, property and money. Uganda belongs to him by conquest. That is Museveni’s mindset and any discourse on electoral reforms must be viewed in that context.

To that end, based on the military, political and executive powers President Museveni had accumulated since his unlawful seizure of power in 1986, he succeeded in creating a government structure that comprised the army, police, intelligence agencies and the EC, institutions that owed personal loyalty to him as a person rather than to the constitution or the state. He adopted fear as one of the major elements in his “tool box” for controlling the population.

Notwithstanding the immense power he already exercised over poor Ugandans, the control of state institutions by Museveni was not enough; he had to go a step further to undermine, and possibly destroy other political parties, particularly DP and UPC. After the 1996 elections, Museveni introduced the “movement system” of government as an alternative to a multiparty system – another name for a one-party state. The creation of the “movement system” effectively banned political activities of all parties except Museveni’s NRM.

It is against this background that Museveni’s views and attitudes towards elections must be understood. Despite all his advantages of incumbency, effective control over the military, security, intelligence agencies and the EC, Museveni takes no chances in case the judiciary is independent. He therefore aggressively moved and controlled the judiciary by deploying “NRM cadres” as judges, and NRM activists as support staff.

After falling out with Museveni and the NRM elites in 1999, Kizza Besigye, a former personal doctor to Museveni during the “bush war”, chose to contest presidential elections in 2001. Both Museveni and Besigye contested the presidential elections on the “movement” ticket based on individual merit. The Museveni appointed, and controlled EC declared Museveni victorious. Dissatisfied with the results, Kizza Besigye filed his petition at the supreme court seeking to overturn the announced result.  

On 2 April 2001, the supreme court, by a vote of three to two, dismissed the petition and upheld the election result confirming Museveni’s victory.  However, the five-coram court was not unanimous. Two judges (justices Oder and Tsekooko) dissented and concluded that there were extensive illegalities in the elections that the results ought to have been nullified. The other three judges (justices Odoki, Karokora and Mulenga) ruled in favour of Museveni but concluded that the illegalities proved in court by the petitioner did not affect the results of the elections in a substantial manner. However, the majority opinion also confirmed that there were illegalities and “evidence that in a significant number of polling stations, there were cheating.”

In 2006, Besigye again contested against Museveni and lost.  He filed a petition with the supreme court. In its judgement, the supreme court found as facts that many of the elements of alleged violations of electoral laws and the Presidential Elections Act did take place. The findings were in relation to abuse of voters’ registers, casting ballots and the counting of ballot papers by EC. The judgement further stated that “the principles of free and fair elections were compromised by bribery and intimidation or violence in some areas of the country” and “principles of equal suffrage, transparency of the votes, and secrecy of the ballot were undermined by multiple voting and vote stuffing,” in some cases. However, the court concluded that the violations and non-compliance with the law were not sufficient to nullify the election results because such violations did not affect the overall results in a substantial manner. On a seven-coram bench, Besigye’s petition was dismissed. Four judges (justices Odoki, Mulenga, Katurebe, and Karokoora) voted for Museveni’s victory. Three judges dissenting (Justices Oder, Tsekooko, Kanyeíhamba) voted for nullification of Museveni’s victory.

To underscore the legal point, in both the 2001 and 2006 presidential elections’ petitions, the supreme court acknowledged that there was non-compliance with the electoral laws, including violation of the provisions of the constitution as well as the Presidential Elections Act and the Electoral Commission Act. However, the supreme court concluded that the non-compliance with the governing law did not substantially affect the result of the elections.

The substantiality test was central to the court’s findings, yet the concept remained, poorly developed, reasoned and unarticulated by the learned justices of the supreme court. On the other hand, dissenting opinions of two judges in 2001 and three judges in 2006 were more persuasive and underscored the need to provide sufficient exposure to the concept of “substantiality” test. Without any meaningful clarification, it is problematic to understand how violations of key provisions of the constitution, the supreme law of the land, as well as the Presidential Elections Act and the Electoral Commission Act cannot meet the substantiality threshold.

However, dissenting opinions of the justices of the supreme court, despite Museveni’s victory in the 2001 and 2006 petitions, worried the great manipulator. The possibility of losing elections because of a supreme court judgement was dangerously close. Thus, prior to the 2016 presidential elections, Museveni made new appointments, placing more reliable NRM judges on the supreme court. This was possible because, fortunately for Museveni, all the 2001 and 2006 dissenting judges were out of the bench. Justice Oder had died; justices Tsekooko and Kanyeíhamba had retired having reached the age of 70, a mandatory retirement age for justices of the supreme court.  A window of opportunity was opened for President Museveni to fill the bench with more “NRM cadres”, NRM party loyalist and ethnic allies, judges he could rely on to toe the NRM “correct line” and defend his project of “life presidency”.

Of members of the supreme court who presided over the 2016 presidential elections’ petitions, all nine justices were appointed by President Museveni. [[5]] Some of the nine justices are ardent and unapologetic supporters or members of the NRM. They include for example, the chief justice, Justice Bert Maguda Katureebe, a member of the NRM and long-time former minister in Museveni’s government. Like Museveni, Justice Katureebe is a Munyankore from Western Uganda. Justice Augustine Nshimye, a card-carrying member of the NRM, had served for many years as a minister in Museveni’s government and as an NRM member of parliament. He is also from Western Uganda. Justice Jotham Tumwesigye and Justice Faith Mwondha are loyal, card-carrying members of the NRM. Both served in Museveni’s regime as Inspector General of Government (IGG), a position ring-fenced for senior NRM officials.  With the judiciary looking more like an NRM organ, it is persuasive to conclude that the NRM chairman exercises considerable influence over their deliberation, particularly when the chairman is also a party to, or a litigant in, a case before that court.

However, there is no direct evidence that any of the justices of the supreme court mentioned above, or those appointed by Museveni, have received direct orders from President Museveni on how to conduct themselves in court. Again, the fact that these judges have links with the NRM is not necessarily proof that they are either biased in favour of Museveni or the NRM party notwithstanding their ethnicity and loyalty to President Museveni. What is crucial, however, is the perception or appearance of bias based on their membership of the NRM party, personal loyalty to Museveni, the person, and how they relate to its chairman, who is also the presidential candidate and a respondent in the petition before the court. An important maxim in the rule of law is that justice must not only be done, it must be seen to have been done. Thus, any appearance of bias or lack of impartiality of members of the judiciary tends to undermine confidence of the population in the judgements of the court.

Overall, while the possibility of judicial justice exists, under these specific circumstances, it is problematic to conclude that the executive (Museveni) did not influence the judiciary since many judges on the supreme court are affiliated with the NRM or appointed by its chairman under a flawed process. It is in this context that the order issued by the supreme court on 31 March 2016 must be viewed.

In Mbabazi vs Museveni 2016 judgement, consistent with the 2001 and 2006 judgements, the supreme court identified serious failures by the EC and proceeded to observe that there was “non-compliance vis-à-vis the Presidential Elections Act in the 18 February 2016, elections”. While the full bench of the Museveni-appointed judges unanimously dismissed Mbabazi’s petition, it also proceeded to make far-reaching recommendations intended to improve the electoral process.  It is these electoral reforms that must be concluded, with the attorney general reporting to the supreme court by 31 March 2018, at the latest.

Lessons learned from the supreme court judgements demonstrate that despite serious irregularities in the electoral process, the justices always rule in favour of President Museveni. A further lesson is that as long as the majority of judges on the bench are “NRM cadres,” the executive, in the person of Museveni, shall continue to obstruct justice by undermining the independence of the judiciary.  With or without electoral reforms as ordered by the supreme court, and as long as President Museveni continues to have effective control over the security and intelligence agencies, state organisations dedicated to the protection of the president and his family, Museveni shall remain life president, or become Uganda’s new emperor.

In conclusion, President Museveni, having captured Uganda and converted it into a private estate, thriving on corruption, ethnicity, and abuse of office, fear and manipulation of the legal system as strategies of regime survival, narratives about electoral reforms are simply diversionary tactics for there shall be no meaningful or positive electoral reforms as long as the status quo remains the same.

* Doctor Alex Obote Odora is an independent legal consultant