A Critical Analysis of the Supreme Court Decisions
Dr. Fred Sekindi is a lecturer in International Public Law and International Human Rights at Nkumba University and a consultant tutor with the African Prisons Project in Uganda
This article analyses the constitutional and domestic legal framework under which the president of Uganda has been elected since 1995. The focus is on the three Supreme Court decisions in the adjudication of presidential electoral disputes in 2001, 2006 and in 2016. It argues that presidential electoral laws are deficient in their capacity to facilitate fair political contestation. This is because they were not adequately constructed to address electoral malpractices pertaining to Uganda, and they have been interpreted to favour the incumbent.
Keywords: Constitution of Republic of Uganda 1995, electoral offences, presidential elections, presidential electoral laws, presidential electoral petition, Supreme Court
The post-1995 constitutional reforms in Uganda were aimed at averting violent struggles for political power. One of these reforms was the introduction of direct presidential elections. The significance of this is that since the Constitution of 1995 came into force, and for the first time in the country’s history, the majority of Ugandans could elect their president directly. In addition, more Ugandans than before are eligible to stand for election as president. This article studies how the Supreme Court in Uganda has adjudicated presidential electoral disputes since 1995. It evaluates the efficacy of the constitutional and domestic legal framework under which the president of Uganda is elected, in protecting fair
political contestation in order to achieve its objectives. This article further argues that presidential electoral laws have been constructed without attention to the electoral lawlessness prevalent in Uganda. These laws make it almost impossible to challenge the outcome of the election, particularly where the declared winner is the incumbent. Therefore, the laws are incapable of converting votes into a truly democratic choice, and are consequently unable to avert violent struggles for political power.
The article opens with a background to the development of the post-1995 legal framework under which the president of Uganda is elected. This is followed by an analysis of the decisions of the Constitutional Court in the presidential election petitions of 2001, 2006 and 2016. This in turn is followed by an explanation of the principles employed by the Constitutional Court in adjudicating presidential electoral complaints and a discussion of the deficiencies in the presidential electoral laws. The article also offers an alternative interpretation to the principles for adjudicating presidential electoral laws in an effort to address the electoral lawlessness that has plagued presidential elections in Uganda since 1996. Finally, the findings of this study are discussed in the conclusion. Methodologically, this article is a product of desk research including a review of primary sources (cases, constitutions, and statutes) and secondary documents (books, journals, and newspapers).