IN THE SUPREME COURT OF UGA

URT OF UGANDA

EIVED

*
C:IVIL APPLICATION NO. 2 OF 2016

ARISING FROM

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THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA
CIVIL APPLICATION NO. 2 OF 2016
(ARISING FROM ELECTION PETITION 01 OF 2016)
1. >'PROF. J. O_ljC>KA.::ONYANGO
2~~;PROF.

3.
4.
5.
6.
7.
8.
9.

SLVIA.TA:MALE
ASSOC. PE.()F. CHRISTOPHER MBAZIRA
DR. RONALD NALUW AIRO
l)R. ROSENAKAYI
DR. BUSINGYE KABUMBA
MR. DANIEL RUHWEZA
DR. KAKUNGULU MAYAMBALA
MR. DANIEL NGABIRANO

]
]
]
]
]:::::::::::::::::AMICI
]
]
]
]

IN THE MATTER OF AN APPLICATION FOR LEAVE TO

INTERVENE AS AMICUS CURIAE BY THE AMICI HEREIN ARISING
FROM ELECTION PETITION NO. 01 OF 2016
BETWEEN
AMAMA MBABAZI SC

]:::::::::: PETITIONER

AND
1. YOWERIKAGUTAMUSEVENI
2. ELECTORAL COMMISSION
3. THE ATTORNEY GENERAL

] :::::::RESPONDENTS
]

(Under Articles 1, 3(4), 17, 54, 104(5), 126(1), 127 and 128(3) of the
Constitution of the Republic of Uganda, 1995 (as Amended), Objective XXIX
of the Constitution, Section 59(3) of the Presidential Election Act No.16/2005,
Rule 2(2) of ;the Judicature (Supreme Court Rules) Directions, S.I. 13-11,
Regulation 15 of the Presidential Elections (Election Petitions) Rules, S.I. No.
13 of 2001, Sections 14, 33 & 39(2) of the Judicature Act, Cap 13, Section 98
of the Civil Procedure Act, Cap 71, Order 52 of the Civil Procedure Rules,
S.I. 71-1 And/or any other enabling Laws, Rules and Regulations).

Page 2 of 33

TABLE OF CONTENTS
I.

INTRODUCTION ..................................................................................................................... 4

II.

SOME NEW REFLECTIONS ON THE CONCEPT OF AMICUS CURIAE IN UGANDA ...... 5

Ill. THE LEG:A:,L,,BASIS FOR,TH'E,B,RIEF.................................................................................... G

IV. ELECTORAL LAW REFORM: REVISITING THE SUPREME COURT POSITION ............ 7
A.

Facilitation of the Electoral Commission ...................................................................................... 8

B.

Nature of evidence ..................................................................................................................... 10

C.

Time for filing and determining petition ..................................................................................... ll

D.

Tin1e for holding re-election ....................................................................................................... 12

E.

Tirnely enactment of election la\VS ............................................................................................. 12

F.

Partiality of election officials ..................................................................................................... 13

G.

Deletion of Voters from Register without Due Process ............................................................... 15

H.

Failure or refusal by Returning Officers to avail reports on time ................................................. 16

I.

Contradictory and inadequate legal standards ............................................................................. 16

J.

Level ground for candidates ....................................................................................................... 17

K.

Role of security forces ............................................................................................................... 18

L.

Historical context of inadequate electoral law and practice: An Incomplete Transition ................ 19

V.

INSTITUTIONAL AND LEGAL TRANSFORMATION ....................................................... 21

VI. THE QUESTION OF ENFORCEMENT ................................................................................ 24

A.

THE ATTORNEY GENERAL .................................................................................................. 25

B.

USING THE STRUCTURAL INTERDICT ............................................................................... 26

VII. CONCLUSION AND RECOMMENDATIONS ...................................................................... 31

Page 3 of 33

I.

INTRODUCTION

,-

THE HONOURABLE LORDS OF THE SUPREME COURT:

1. If it may please the Court, this is the final version of the Amici Curie
submissions in these proceedings.
2. A core value of the School of Law at Makerere University is to serve tl
community and to stand up for the rights of citizens with integrity ar
excellence. In this respect, we have come together as scholars ar
researchers of Constitutional Law, Human Rights and Democrat
Governance and in execution of our civic responsibility as citizens ~
Uganda. This Brief is designed to assist the Court in its due inquiry
respect of the matter before it so as to enable it to come to a just decision
this matter.
In light of the ruling of this Honourable Court in Prof J. Oloka-Onyango ,
8 Ors. (Amici) In the Matter of Amama Mbabazi v. Yoweri K. Museveni &
Ors., 1 the following issues are addressed in these submissions:
a. Some New Reflections on the concept of Amicus Curiae in Uganda;
b. Electoral Law Reform;
c. Institutional Changes, and
d. The question of enforcement.
3. Your Amici take note of your directions to make practical proposals and 1
offer possible remedies beyond declarations which can be pursued by th
Honourable Court. In particular, we mainly focus on the issue <
enforcement, which is found in section V of this brief, and which we sub m
to be your Amici's major contribution to the jurisprudence in this are
Nevertheless, we have also provided some further input on the matte:
traversed in sections II to IV of the brief. For ease of reference, all matte:
which are newly introduced in this brief are outlined in bold.
4. In making the proposals, your Amici are mindful of the contributio
they bring to this Petition as stated in Civil Application No. 2 of 2016:

Supreme Court Civil Application No.2 of2016, arising from Presidential Petition No. I of2016.
Page 4 of 33

~
I
I
I
I
I
(

'

In conducting its "due inquiry" in this matter under Article 104(5) of

the Constitution, it is pertinent for Court to consider its decisions in
Presidential Petition No. 1 of 2001 and Presidential Petition No. 1 of
2006 proposing legislative and legal reforms.
The Amici's;proposals

are,,present~d

under the following heads:

a) The obligation of state agencies and organs under Article 128(3) to act
upon the observations on legislative and other electoral reforms
contained in Presidential Petition No.1 of 2001 and Presidential
Petition No. 1 of 2006;
b)The impact of the
lack of action on the Supreme Court
recommendations in Presidential Petition No. 1 of 2001 and
Presidential Petition No. 1 of 2006 and its effect on the 2016
Presidential election under Article 1(4) of the Constitution, and
c) The nature and type of remedial measures this Court can take to cure
the effect of the said lack of action.
II. SOME NEW REFLECTIONS ON THE CONCEPT OF AMICUS CURIAE
IN UGANDA
5. The ruling of this Honourable Court in the case of 0/oka-Onyango & 8
Ors., has provided a new and fairly comprehensive template for dealing
with the issue of amicus curiae briefs in general and in relation to their
place in presidential election petitions in particular. It gives effective
translation to the provisions of Article 126(1) on the exercise of judicial
power. , It is esp~cially important with respect to the clarification it
provides on matters such as bias, public interest and the expertise of the

Amici.

'

6. Nevertheless, we are of the humble opinion that there is still a need to

address matters in relati()nto: (j) a gen~ral harmonization of the ruling
with respect to the CivilProcedur~>:.RUies and the Judicature (Supreme
Court Rules) Directions (S;I ,No. 13 of 2001), Presidential Elections
(Election Petitions) Rules 2001; and (ii) specific application of the
Page,S of33

concept of amicus in Presidential Elections petitions, espec

regarding the time for filing and hearing amicus applications.
Honourable Court may also wish to examine its own residual powe:
to the place of Amicus Curiae within the general administratio
justice.

Ill.

THE L'EGAL BASIS FOR THE BRIEF

7. Article 1( 1) of the Constitution of Uganda provides that: All power bel

to the people who shall exercise their sovereignty in accordance with
Constitution. Ariicle 1(2) provides: "Without limiting the effect of cl
(1) of this miicle, all authority in the state emanates from the peopl
Uganda; and the people shall be governed through their will and conseJ
is submitted that this provision justifies the intervention in a Preside
Petition of persons who seek to protect the public interest and the pow<
the people."
8. Article 1 is complemented by Ariicle 126(1) which provides that: "Jud
power is derived from the people and shall be exercised by the cc
established under this Constitution in the name of the people anc
conformity with the values, norms and aspirations of the people." The s
participation is envisaged by Article 127.
9. Article 104 which regulates the determination of Presidential Elec
petitions provides in clause (5) that: "After due inquiry under clause O
this article, the Supreme Court may - (a) dismiss the petition, (b) dec
which candidate was validly elected, or (c) annul the election." It is hun
submitted that the need for "due inquiry" justifies the admission of am
seeking to help court decide the Petition by considering arguments mad
the public interest.
IO.The Amici are legal experts and members of the Academy with a partic
expert1se in Constitutional Law, Human Rights and Governance.
submissions as elaborated in the brief do not seek to support or prejudice
of the parties but simply to give legal submissions the Amici deem neces:
for the Court in coming to a just decision in the Petition. Such action
restore the confidence of citizens in the country's democratic process
encourage citizen participation in peaceful and credible elections. Secon
Page 6 of 33

implementation of the suggested reforms will greatly reduce on electionrelated disputes. In pursuance of this goal, the emphasis in this brief has
been placed on reforms directed towards improving the independence and
credibility of the Electoral Commission (EC) and matters related thereto.

IV. 'ElJECff@RAL LA,W/REFORM: REVISITING THE SUPREME COURT

POSITION

11 ::rhe Supreme Court of Uganda has handled presidential election petitions on

two previous occasions, that is to say, Rtd. Col. Dr. Kizza Besigye v.
Electoral Commission and Yoweri Kaguta Museveni Presidential Election
Petition No. 1 of 2001 (hereinafter 'Besigye v. Museveni I') and Rtd Col.
Dr. Kizza Besigye v. Electoral Commission and Yoweri Kaguta Museveni
Presidential Election Petition No. 1 of 2006 (hereinafter 'Besigye v.
Museveni II'). On both occasions, the Court and individual Justices have
made a number of specific and general recommendations regarding
necessary reforms to the law required to enable the holding of free and fair
elections, which can be said to truly express the will of the Ugandan public.
12. Twelve broad interventions can be identified in this regard: i) Facilitation of
Electoral Commission; ii) Nature of evidence; iii)Time for filing and
determining a petition; iv) Time for holding re-election; v) Timely
enactment of election laws; vi) Partiality of election officials; vii) Deletion
of voters from register without due process; viii) Failure or refusal by
Returning Officers to avail reports on time; ix) Contradictory and inadequate
legal standards; x) Level ground for candidates; xi) Role of security forces;
and xii) Historical context of inadequate electoral law.
13. Whil~ your Amici note that the said recommendations were lateral to
the main judgments, the fact that they were included in both Supreme
Court judgments indicates that they were deemed crucial to the overall
enhancement 0 f the democratic process in Uganda. Obiter dicta
provides a rare. window into the minds of judges and can be strongly
persuasive, particularly if made by justices at the pinnacle of the
judicial system.. Indeed, in Contract Law, the well-known equitable
doctrine of Promissory Estoppel stemmed largely from the obiter
statement of Justice Denning (as he then was) in the oft-quoted 1947
1

Page 7 of 33

High Trees Case. 2 Today, in Uganda, courts routinely apply the

doctrine without much tlwught to its original inroad into the
Jurisprudence as obiter.(The case of Centeral London Property Trust is
annexed as "Al ").
14:1n;.ljgbt of the abov~ ob~erv~don,~your A111ici a.ssert th.at an election is a
pt~ocess}and :nQ~;:'3.Q:,;'1 .,eve#,t. JDhis sedion of tlje 1BrJef outlines the
substance of the reforlris envisaged and specifically: recommended in the
pastby the Honourable.Justices of the Supreme. Court, for the purposes
of ensuring free and fair. elections in Uganda. Such contribution is in
accordance with articles: 1, 3(4), 17, 54, 104(5), 126(1), 127 and 128(3) of
the Constitution .of Uganda. Of particular relevance is Article 1(4)
which states that "1ihe people shall express their will and consent on
who shall govern. them and how they should be governed through
regular, free and fair elections of their representatives or through
referenda."
In the sections which follow we refer back to the specific interventions
of the learned justices of the Supreme Court and offer our views with
respect to the implications of those observations:
A. Facilitation of the Electoral Commission
In Besigye v. Museveni I, Odoki CJ and Mulenga JSC remarked upon the
need for the Electoral Commission to be adequately empowered to perform
its constitutional and statutory duties. According to Odoki CJ, the EC had to
be granted "adequate powers and facilities, to build capacity, efficiency and
credibility in its .conduct of elections" if free and fair elections were to be
realized. 3 Similarly, Mulenga JSC noted that while the EC was empowered
under Article 61 of the Constitution with a wide mandate in respect of
managing elections, the reality was that these powers were "on paper only"
4
in so far as the Commission was "not equipped to exercise them." In his
view, this created a fundamental anomaly in so far as when, in that case, the
Petitioner and ; other candidates complained to the EC about issues of
security, violence and intimidation, the Commission in turn had to rely on

2
3

Central London Property T;11st Ltd v. High Trees House Ltd. [1947] KB 130.
Besigye v. Museveni I, Judgment of Odoki CJ, p41.
Besigye v. Museveni I, Judgment ofMulenga JSC, p821.
Page 8 of 33

the Inspector General of Police, Army Commander and, ultimately, to the

Commander-in-Chief, who was himself a candidate in the elections. 5
!In Besfgye v Milsecverii.li, Odoki again decried the capacity gaps apparent in
the::cE(\ noting!r ,especially! th~ inadequacy of voter education which had
indirectly contributed to the disenfranchisement of voters. 6 Similarly,
Katureebe JSC (as he' then ;,was') noted the fact that money which was
supposed to have been released by Parliament to the EC as envisaged by
Article 66( 1) of ,the Constitution was released very late, and that among
other things, civic and voter education had not been carried out as a
consequence. 7 These failures had caused a number of irregularities
witnessed during the elections. 8
Al. Your Amici note that all the state agencies that are supposed to
engage in civic education in general and voter education in particular
treat these matters as ancillary to their central mandates. In part, this
is on account of the gross and continuous underfunding noted by the
Court, but it is also on account of a belief that such education is ad /roe
and subsidiary and not fundamental. Such misperception of the place
of this kind of education is linked to the failure to observe and promote
Article 4 of the Constitution (on the promotion of public awareness of
the Constitution). It is thus our view that among the most serious
consequences of the lack of voter education is the very high number of
invalid or spoilt votes (477,319 in the 2016 poll), which represents a
serious violation of the Right to Vote.
A2. There is a need for a calendar of electoral events-including
specific provision made for civic and voter education-that is designed
well in time and released to the general public for consumption and
digestion. Ag~ncies of the state involved in civic and voter education
need to plan itnd coordinate their activities well before the electoral
period. For the 2015/2016 elections cycle, the Electoral Commission's
official elections Road Map makes no mention of civic and voter

As above.

Besigye v. Museveni Il, Judgment ofOdoki CJ, pl52.

Besigye v. Museveni II, Judgment ofKatureebe JSC, p402.

As above.
Page 9 of 33

education, 9 contrary to Article 61(1)(g) of the Constitution of Uganda

(The EC Road Map for 2016 is annexed as "A2").
A3. Ultimately, agencies of the state involved in governance and the
implementation ,of the Rule of Law need to improve the manner in
which constitution,al, .r~~hts-.such as the Right to Vote-are
aP;preciated,,respected .~.and implemented by themselves and by the
wider: po,pulace. rCivic and voter education is criticaHn this regard.
A4. The effectiveness of the state organs and agencies is determined at
the end ofthe day by the resources and facilities availed to them. Your
Amid note continuous underfunding of those institutions including the
Electoral Commission. This is in clear violation of Paragraph VIII of
the National Qbjectives and Directive Principles of State Policy and
articles 8A:artd'66(1) of the Constitution.
B. Nature of evidence
In Besigye v. Museveni I, Tsekooko JSC remarked on the inadequacy of
exclusive reliance on affidavit evidence, as required by Rule 14(1) of the
Presidential Election (Election Petition) Rules, SI No.13 of 2001. 10 He
recommended that in future, presidential election petitions be tried by
hearing oral evidence, relying in part on evidence of expeditious handling of
such petitions in this manner in jurisdictions such as Nigeria. 11 Oder JSC
similarly noted the challenge of determining the veracity of affidavits in the
absence of examination and cross-examination of deponents. 12

Similarly, in Besigye v. Museveni II, Odoki CJ felt that the Presidential

Elections (Electoral Petitions) Rules 2001 ought to be reviewed to provide
for the calling and examination of witnesses instead of exclusive relying on
affidavits, many of which might be "false or are made under suspicious

See., Electoral Commis~ion, Revised Milestonesfor the 2015-2016 General Elections Road Map, dated 2"d
October, 2015, Ref. ADMIN/72/0 I, Available at,
http://www .ec.or.ug/si tes/default/files/press/Roadmap%20for%2020 15-20 16%20General%20Elections.pdf,
accessed March 16th March, 2016.
10
Besigye v. Museveni I, Judgment ofTsekooko JSC, pp513-514.
11
Besigye v. Museveni I, Judgment ofTsekooko JSC, p514. See, to the same effect, Judgment ofKarokora JSC, at
661.
12
Besigye v. Museveni I, Judgment of Oder JSC, p206.
Page 10 of33
9

circumstances and therefore not safe to be relied upon, without cross

examination of the deponents." 13
:B,t. Your Amici:(stro""gly recommend that the concerned state organs
and agencies improveJhe,legalframework for-the presidential election
petitions, taking into account new deveh:>;pinents in the nature of
evidence, adduced,,J_>~for-e Co~:rt 'This,.wo~ld:eliminate.:.placing reliance
simply on requests for the leave of court in order to introduce new
material, while the:proceedings are already underway.
C. Time for filing and determining petition
In Besigye v. Museveni II, Odoki CJ and Justices Kanyeihamba, Katureebe
and Tsekooko specifically recommended a review of the period provided
under Article 104 of the Constitution and Section 59 of the Presidential
Elections Act for filing (ten days) and hearing and determining (thirty days)
presidential petitions to allow the parties and Justices involved to do justice
to these petitions. 14 This burden was particularly higher for the petitioner. 15
According to Odoki CJ, the period for determining the petition had to be
increased to at least sixty days to give the parties and the Court sufficient
time to prepare, present, hear and determine the petition. 16
Cl. Your Amici note that the question of the time for filing and
determining the petition has implications for the other timelines which
are contained in the Constitution, and consequently, there is a need to
address this issue in a comprehensive manner and with due regard to
the above stated provisions.

Besigye v. Museveni Il, Judgn~ent ofOdoki CJ, p153.

Besigye v. Museveni 11, Judgment of Odoki CJ, pi 53; Judgment of Kanyeihamba JSC, p307 (noting that the
restricted time is "one of the biggest handicaps that face parties and court in this kind of petition"); Judgment of
Katureebe JSC (as he then was) at p403 ("[r]easonable time is needed to enable the parties file their pleadings and
for the court to have reasonable time to inquire into all the matters alleged"); Judgment ofTsekooko JSC at pp271273.
15
Besigye v. Museveni Il, Judgment of Kanyeihamba JSC, p307 ("It was especially more difficult for the
Petitioner's team which was searching for relevant information much of it was in the possession of the I ' 1
Respondent or its agents"); Ju'dgment of Tsekooko JSC, p272 ("The combined effect makes it pretty difficult for
parties, especially a petitioner, to lodge a perfect petition").
16
Besigye v. Museveni 11, Judgment ofOdoki CJ, pi 53.
Page 11 of33
13

14

D. Time for holding re-election

Related to the above, in Besigye v. Museveni II, Katureebe JSC (as he then
was), noted the need to review the requirement under Article 104(6) of the
Const~itution, in terms, of which, in the event a presidential election is
nul'fi:fied by the 1Go11rt, a::f'resh 1eleption must be held within twenty days from
the date of the anplll'lmerif 17 He. considered that, at the time of the enactment
ofthisprovision~~~thefra:rners'might have assumed the existence of a number
of "fundamental processes" such as a requisite legislative framework,
adequate funding and voter education, as well as a proper register. 18 In the
event; in his view, the tenuous status of these and other factors meant that
might be "too much optimism to expect that the Electoral Commission
would then organize a truly fair and free election within 20 days of the
nullification of an election." 19 In fact, under these circumstances, it might be
that "a subsequent election ends up being the same or worse than the one
challenged." 20 To this end, Katureebe JSC was of the considered opinion
that Parliament ought to consider allowing a longer period for holding a
fresh election, one which would be "realistic enough for the Electoral
Commission to address what had gone wrong and make adequate
preparations for a free and fair election superior to the one nullified." 21 In
this regard, he proposed a consideration along the lines of the approach
enshrined in Article 104(7) of the Constitution. 22
Dl. As noted in Cl above, given that the time for holding a re-election
would have implications for other timelines which are contained in the
Constitution, the adjustment of the general electoral calendar should
take into account the need for a realistic timeline for holding such reelection.
E. Timely enactment of election laws
In Besigye v. Museveni I, Odoki CJ noted the need for electoral laws and
guidelines for ithose participating in elections to be "made and published in
17

Besigye v. Museveni Jl, Judgment ofKatureebe JSC, pp403-404.

Besigye v. Museveni !I, Judgment ofKatureebe JSC, p404.
19
As above.
20
As above.
21
As above.
22
As above. In terms of Af1icle 104(7), "If after a fresh election held under clause ( 6) of this article there is another
petition which succeeds, then the presidential election shall be postponed; and upon the expiry of the term of the
incumbent President, the Speaker shall perform the functions of the office of President until a new President is
elected and assumes office."
Page 12 of33
18

'good time." 23 A similar call was made by Katureebe JSC (as he then was) in
Besigye v. Museveni II, wherein he noted the importance of enacting all
requisite laws be in a timely manner so as to enable the Electoral
'Commission to effectively perform its role. 24
FJ:l. ''IJI'h~. AmicliJii'o~e',>;;that(:wUh .re~pect to the... Just-concluded electoral
cy.CJe, !amend111erits 4o r1the/ :primacy l{igishitiori-.-.. th.e Electoral
Commission
Act artd;the' Presidenth1l Electiolis Act-were enacted as
.
late as November, 2015. This was well into the campaign period of the
cycle and implies that aspects of the law were only partially
implemented. It is our considered suggestion that any reforms which
are to be made to election-related laws be undertaken within two (2)
years of the establishment of a new parliament in order to do away with
the practice of last-minute, hastily-enacted legislation on elections. Such
early enactment of the necessary laws will mean that any changes which
need to be made later in the electoral cycle will not be of a fundamental
nature. It would also match with the spirit of various provisions of the
electoral laws, including Section 3(1) of the Presidential Elections Act of
2005 (Aspirant Consultations).
.

E2. The issue of speedy reform of the laws is related to performance of

the Electoral Commission. Timely reform of the laws reduces the
pressure on the Electoral Commission in terms of making and meeting
the rather heavy logistical requirements required. It also obviates the
recourse to questionable practices such as the creation of new
constituencies.

I,

F. Partiality of election officials

In Besigye v. Museveni I, Oder JSC highlighted the challenge of bias on the
part of election officials. 25 He noted that while the law did not expressly
prohibit the EC from appointing biased election officials, it was empowered
under Section 30(2)(e) of the Act to dismiss a Returning Officer who had
been shown to be biased in the performance of their duties and that this was
also an offence under Section 30(5) of the Act. 26 At the same time, the law
was silent with regard to bias on the part of Presiding Officers and Polling
23
24

25
26

Besigye v. Museveni I, Judg111ent ofOdoki CJ, p40.

Besigye v. Museveni li, Judgment ofKatureebe JSC, p403.
Besigye v. Museveni l, Judgment ofOder JSC, p430.
As above.

Page 13 of33

Assistants. 27 In his view therefore, law reform was crucial for gaps in the
law to be addressed? 8
Similarly, in Bestgye v. Museveni II, Odoki CJ noted the "partisan and
partial conduct of some electoral officials like presiding offers and other
polling; ,officials. who:engaged ,in ,el~cton:tl ,malpractices :lik.errtultiple voting"
and cal!led upon,, .the 1'}3C ::to. ''provide suitable training <,iS well as effective
supe1wision of such:,offiCia1s.'~ 29

FL The Amici are of the strong view that the ailments isolated above
relate to a larger problem than the lack of training and effective
supervision. It is our considered view that there is a need to introduce a
transparent, competitive and merit-based process to the recruitment,
vetting and ap,pOintment of all election officials. That need is manifest
right from the l~vel of the chairperson and the commissioners down to
All officers of the
the presiding officers and polling officials.
Commission need not only to be impartial, but must be seen to be
impartial. They must desist from partisan commentary in favour or
against any of the presidential candidates. They must be seen to be
consulting and cooperating with all sides in the electoral process, rather
than appearing to be taking orders from any one official and/or
institution whether of the State or of the official political opposition.
F2. The Amici emphasize that the officials of the Electoral Commission
are not traditional civil servants in the employ of the government. The
chairperson and commissioners are members of a constitutional body
which is a special kind of institution created by the 1995 Constitution,
standing alongside the Uganda Human Rights Commission, especially in
terms of its independence (Article 62). While the tenure of the
chairperson ~.nd commissioners is not as secure as that of judges of the
courts of judicature, they can only be removed for just cause under
Article 60(8),\on the advice of a Tribunal duly constituted under Article
60(9). This is a unique kind of independence which should be duly
27

As above.
As above.
29
Besigye v. Museveni ll, Judgment of Odoki CJ, p 152. See also, Besigye v Museveni II, Judgment of Kanyeihamba
JSC, at p324, citing the partisan nature of, among others, national electoral agents, 'to the extent of showing bias
and, in some instances, open animosity while actively working for and favouring one set of candidates'.
28

Page 14 of33

protected and reinforced in order to ensure that they perform their

functions withoutfear, favour, prejudice or interference.
F3. It is the copsidered opinion of the Amici that being established
undcr:;{he Constitution,,,the.'ElectoralCommission must be the paragon
oLeff'iciency, objectiveness and fairn~ss. To achieve this goal, there is a
need;lfo.r:a compre.h~nsiv,ereview.ofth~performance of the Commission
with a view to add~essing its structural failings and improving its
overall performance~ It is the strong' belief of the Amici that such review
would then devolve to the lower cadres in the Commission such as
presiding officers and polling officials.
G. Deletion of Voters from Register without Due Process
This question was addressed in Besigye v. Museveni IL In that case, Odoki
CJ decried the "massive disenfranchisement" of voters which had occurred
through their deletion from the voters' register without according them
notice and a hearing. 30 In this regard, he noted the need for the EC to take
steps to ensure a fair and transparent mechanism for the de-registration of
voters, including adequate notice of new polling stations ahead of the voting
date. 31 Similarly, Katureebe JSC (as he then was) considered that there was
a gap in the law in so far as a persons whose names were recommended for
deletion were not notified so that they might be in position to present their
case for non-deletion. 32
Gl. The Amici note that concerning Section 5(a) of the Electoral
Commission (Amendment) Act No.15 of 2010, Section 25 of the
Electoral Commission Act was amended to address this question.
Under that amendment, before any general election is held, the
Commission must, by notice in the Gazette, appoint a period of not less
than twenty-one, days during which a copy of the voter's roll for each
parish or ward must be displayed for public scrutiny. In addition to
these twenty-one; days, the Commission must allow a period of ten days
during which any objections or complaints in relation to the names
recommended by the tribunal to be inCluded or deleted from the voters
roll or in relation to any necessary correctiorfs must be raised or filed.

30

Besigye v. Museveni II, Judgment of Odoki CJ, p 152.

As above.
32
Besigye v. Museveni ll, Judgment ofKatureebe JSC, p352.
31

Page 15 of33

G2. The Amici only wish to re-emphasize that this issue remains of
paramount concern to the realization of the Right to Vote guaranteed
by Article 59.

H. iF~ilure or nifusal.by Returning Officers to avail reports on time

In Besigye v. Museveni II, Odoki CJ made special mention of the failure by
the EC to avail the .Supreme Court with a number of reports of Returning
Officers. 33 In his view, it was important that the reports be submitted as
soon as the elections were completed. 34 Katureebe JSC (as he then was)
noted that it appeared that returning officers "exploited the lacuna in the law
in that no time limit had been prescribed within which to submit the
reports. " 35
Hl. The Amici note that Section 56 of the Presidential Elections Act
2005 was amended to address the problem identified in Section 16 of the
Presidential Elections (Amendment) Act No.14 of 2010. Under that
amendment, a returning officer must compile and submit to the
Commission, within seven days after the conclusion of the election, a
report of that election within the returning officer's electoral district.
H2. The Amici note that this issue remains critical in terms of allowing
all stakeholders in the electoral process the opportunity to
independently verify results declared by the Electoral Commission. It is
also important with regard to enabling any aggrieved candidates(s) with
the opportunity to adequately prepare and present their case(s)
challenging the results of the election.
I. Contradictory and inadequate legal standards
'
In its summary judgment dismissing the Besigye v. Museveni II petition, the
Court felt that certain provisions in the electoral legislative framework were
"contradictory and inadequate" such as Sections 24(5) and 59(6)(a) of the

33
34

35

Besigye v. Museveni Il, Judgment ofOdoki CJ, p !53.

As above.
Besigye v. Museveni II, Judgment ofKatureebe JSC, p355.
Page 16 of33

Presidential Elections Act, and Section 25 of the Electoral Commission Act,

and recommended that they be reconsidered~ 36
11. The Amici note that no steps have been taken by the concerned
,governmental ,autliotities 1to address or reconsider the problematic
'Pr<,>visions in'the ele~torali'il~gislative. fra.lrtework ,b~ghlighted by the
Court above. w~e\:notev~tJ:Hiban,tilttemphwas:madetmad,.clvcss one of these
issues, that is to:say, Section 59(6)(a) of the Presidential'Elections Act, to
the Constitutional Court vide the case of Col. Dr. Kizza Besigye v.
Attorney Genera/. 31 However, that Court felt that the legislature was
better placed in terms of reconsidering the threshold set for annulling
presidential elections. A notice of appeal to the Supreme Court has
been lodged in respect of this decision. The Amici, therefore, are of the
strong opinion that the onus of initiating reforms aimed at effectively
addressing the "contradictory and inadequate" provisions of the
electoral legislative framework lie with the Executive branch of
government. It is critical that this reform process be started without
any further delay or prevarication.

J. Level ground for candidates

The Justices of the Supreme Court have also emphasized the need to ensure
fairness and equity for candidates vying for the highest office in the land.
For instance, in Besigye v. Museveni I, Odoki CJ observed that there had to
be a "leveling of the ground" to ensure that the incumbent did not enjoy an
unfair advantage over the other candidates. 38
In Besigye v. Museveni II, Katureebe JSC (as he then was) similarly
observed that there had been an inordinate enjoyment by the incumbent of
the public media, notwithstanding the provisions of Article 67(3) of the
36

Besigye v. Museveni II, Judgment of Odoki CJ, pl53. Section 59 (6) (a) of the Presidential Elections Act, in
particular, which requires ~ petitioner to show that the irregularities complained about affected the results of the
election in a "substantial manner" came under particular scrutiny. For instance, Kanyeihamba JSC felt that it was an
unreasonable fetter on the power of the Supreme Court under Article 104 of the Constitution - see Besigye v.
Museveni ll, Judgment of Kanyeihamba JSC, at pp30 I, 304-306, ("In my considered opinion, Section 59(6){a) ... is
bad law"). On the other hahd, Katureebe JSC (as he then was) considered that this provision was legally valid Besigye v. Museveni Il, Judgment of Katureebe JSC, at pp.338-341, 347-350, 376 ("I see no inconsistency
whatsoever with provisions of Article I 04{1) ... the section 59(6)(a) of the Presidential Elections Act is not farfetched, and is certainly, in my view a reasonable ... provision").
37
Constitutional Petition No.l3 of2009.
38
Besigye v. Museveni J, J.udgment of Odoki CJ, p40.

Page 17 of 33

Constitution, which enjoins state-owned media to provide all presidential

candidates with equal time and space to present their programmes to the
people. 39 In his view, the failure to comply with this constitutional
imper(ltive implied a need to amend the law relating to presidential election
petitions to "provide for the Gpvernment (Attorney General) to be made a
:partytothe petit'icm sothatsuch complaints if pleaded by a petitioner can be
,answ~red and be fully inquired into by the court." 40
Jl. On the issue 9fthe public media, the Amici wish to reinforce the
view . of their Lordships about the need for equality of treatment as
provided by Article 67(2) and (3) of the Constitution. However, the
Amici wish to add that the transition from the analogue to digital
platforms which now incorporates private as well as public media
implies that there is also a public interest element to the operation of
private media. i;\,s a matter of fact, private media in Uganda today is in
all probability ,more extensively viewed than public media. Moreover,
under Section 57 of the Uganda Communications Act, 41 private actors
must give equality of treatment to all customers for their services.
These developments necessitate an engagement of all the stakeholders in
a discussion on this matter in order to ensure that the same principles of
equality of access are applied across the board.

K. Role of security forces

According to Odoki CJ in Besigye v. Museveni I, an ideal electoral process,
in its entirety, should be conducted in "an atmosphere free of intimidation,
bribery, violence, coercion or anything intended to subvert the will of the
people. " 42
Justice Odoki was compelled to note more forcefully in Besigye v. Museveni
II, the need for serious efforts to be undertaken to restrict the use of security
forces during :the conduct of elections "except where they are required to
provide secur~ty necessary to ensure free and fair elections." 43 Even then,
such agencies; must "strictly carry out their duties in accordance with the
39

Besigye v. Museveni ll, Judgment ofKatureebe JSC, p403.

As above. See also, Besigye v. Museveni Il, Judgment ofKanyeihamba JSC, at p324, citing the partisan nature of,
among others, the government press and other media 'to the extent of showing bias and, in some instances, open
animosity while actively working for and favouring one set of candidates'.
41
Act No. I of2013
'
42
Besigye v. Museveni I, Judgment ofOdoki CJ, p40.
43
Besigye v. Museveni 11, Judgment of Odoki CJ, p 152.
Page 18 of 33
40

44

law."
Katureebe JSC (as he then was) emphasized the need for the
government to definitively address the issue of the involvement of security
forces in the electoral process. 45 lh hisview, although the government was
enj.oined to ensure security at all times, including during the election period,
the appropriate mea,gsrto.achieve this was by properly training and equipping
the tJ;g~nga Police '.Force:inwthisregard. 46 According to Justice Katureebe,
any other securityT!forces ix~ould . only be deployed, as a last resort, to
supplernent the police in the execution of its primary role. 47

Kl. It isJhe considered view of the Amici that the question of security is
both a capacity as well as a transparency-related issue. The Learned
Justices of the Supreme Court emphasized the need for effective
security. To achieve this, security needs to be considered at three levels:
(i) simple matters of low-level disturbance, which can be handled by
officials of the Electoral Commission; (ii) matters that pose a serious
threat to life and property over which the Commission has neither the
competence nor the capacity to handle; and (iii) insurrectionary
situations that threaten to destabilize the nation.

K2. The EC needs to be the first point of reference in all electionrelated security matters. Thereafter, the relevant security agencies can
be involved in the management of the issue recognizing that it is the EC
which takes the lead on all election-related matters.

L. Historical context of inadequate electoral law and practice: An

Incomplete Transition
Two Justices of the Supreme Court have provided context to the cunent
electoral laws in place. In Besigye v. Museveni II, Katureebe JSC (as he then
was) noted that the 2006 presidential elections were the first multiparty
elections since 1980, insofar as the 1986-2005 period was governed under
the Movement' political system. 48 In this respect, "consequential
'

44

As above.
Besigye v. Museveni II, Judgment ofKatureebe JSC, p402.
46
Besigye v. Museveni ll, Judgment ofKatureebe JSC, pp402-403.
47
Besigye v. Museveni ll, Judgment of Katureebc JSC, p403. See also, Besigye v. Museveni Il, Judgment of
Kanyeihamba JSC, p324, citing the partisan nature of, among others, the security forces including the police and the
UPDF 'to the extent of showing bias and, in some instances, open animosity while actively working for and
favouring one set of candidates'.
48
Besigye v. Museveni ll, Judgment ofKatureebe JSC, pp328-329.
45

Page 19 of33

amendments to the Constitution and the necessary electoral laws had to be

enacted" to give effect to the decision of the national referendum, in 2005, to
transition to a multiparty system. 49
Acco.rding to. Kar1yeihamba JSC, the root cause of the challenges
experienced to date can :be attributed to the failure to fully make this
transition. In his vie\:'[;, ?the several instances of non-compliance that
continued to occur '~were caused principally by the continued existence and
sustenance of electoral structures created and personnel appointed originally
to serve one political organization, being called upon and entrusted with, in
2006, to organize and conduct elections in which more than one political
party including that one organization, were seriously and acrimoniously
competing for power." 50
Ll. With respect to the historical question, the Amici note that as far
back as February 20, 2002 Parliament in its wisdom established a Select
Committee to Investigate the Cause of Election Violence and Other
Related Matters. 51 Chaired by the-then Member of Parliament for
Mityana North, the Hon. Augustine Nshimye, the Committee made
several key recommendations including:
the impossibility of effectively dealing with matters reqmrmg
constitutional interpretation during the hearing of a presidential
petition;
the question of adequate financing to ensure a free and fair
process; and,
suggestions on the power of the Electoral Commission. 52
Many of the issues raised in the Nshimye Report continue to bedevil the
presidential ~lection process despite the similarity of recommendations
between those in the report and those made by the Supreme Court in
the two pre~ious <.presidential election petitions. This fact underscores
the need for ia different approach to addressing the persistent problem.
Such an approach lies in improving the process of enforcement of the
court decisions which is outlined in Section VI of this Brief. Excerpts
49
50
51
52

Besigye v. Museveni 11, Judgment ofKatureebe JSC, p329.

Besigye v. Museveni II, JudgmentofKanyeihamba JSC, p324.
Republic of Uganda, Report of the Select Committee on Election Violence, September 2002
Id., at pp294-302.
Page 20 of 33

from the parliamentary Report are attached hereto and marked

Annexure "B."

.V..ii[NSTITUWIONAL ANtJ,bEGAL TRANSFORMATION

18. In additiori to the electoralreforms suggested by the Supreme Court in the 2001
and 2006 Presidential Election Petitions, there have been calls offered by different
actors for the comprehensive reform of the Electoral Commission (EC) and the
Many of these calls come from
general Presidential election processes.
independent election observers. Election observation is among the main quality
control mechanisms for any given cycle of elections. Election observation serves a
number of purposes including to: (i) enhance the public's confidence in the
electoral processes (ii) confirm legitimacy of the leaders elected out of the
processes (iii) expose shortfalls or any violations of civil and political rights that
may occur during the process, and (iv) produce reports with recommendations on
how to improve electoral laws and processes for future elections. 53 The Electoral
Commission Act gives the EC the mandate to accredit Election Observers who
participate in Uganda's elections in accordance with section 16 of the Act.
19. Elections Observers may be individuals, groups, or institutions, must carry out
their work in accordance with the guidelines for elections Observation or else they
commit an offence if they contravene the guidelines or observe without
accreditation. 54 Observation of elections without accreditation is an offence, which
on conviction, makes one liable to imprisonment for six months or a fine of a
maximum of fifteen currency points or both. 55 In Uganda's previous elections
(such as those of 2006 and 2011), a number of national organizations, 56
international bodies, and individuals were accredited to observe the elections. It is
a requirement of the law that at the end of the process, each observer or group must
issue a report to the EC within a period of six months after the results have been
declared. 57 Had the)( been implemented, these reports would have improved the
53
Office of the Special Adviser on Gender Issues and Advancement of Women (OSAGI), Women and Elections:
Guide to Promoting the Participation of Women in Elections, Chapter 7- Election Observation pages 75-86 at 75,
avai Iable at, http://www .un.org/womenwatch/osagi/wps/publication/Chapter7 .htm, accessed March 7th 2016.
54
Section 16 (3) & (4) ofthe Electoral Commission Act Cap. 140.
55
Ibid., Section 16 (6). Under the first Schedule to the Act, a currency point is UGX- 20000/=(Twenty thousand
Uganda shillings).
,
56
See, DEMGroup Long term Observation Finds Elections Mostly free but not fair, available at,
http://www.gndem.org/dommonreport DEMGroup LTOstatement 2011 eng, accessed March 7, 2016.
57
Cap. 140, Section 16 (5):
Page 21 of33

electoral processes of the 2016 elections cycle. It is our humble submission that
the Supreme Court should also give attention to the recommendations of these
actors, and compel the government to take seriously the recommendations of the
observers that it accredits in a bid to improve the electoral process.
20. This part ,of the briefaims at summarizing some of the proposals that have
emerged with . a firm belief that if implemented alongside the Supreme Court
recommendat1ons, they will set a secure and enduring basis for a free, fair,
transparent and effective.presidential electoral process.
21. Existence of an independent Electoral Commission is a pre-requisite for a free
andfair.election. The need for an impartial EC in Uganda has been acknowledged
Under the Constitution
by government and non,..govemment actors alike.
(Amendment) Bill of 2015 initiated by the Minister of Justice and Constitutional
Affairs, it was proposed that the name of the Commission be changed to the
Independent Electoral Commission (IEC). 58 Although eventually dropped and
excluded from the final text of the law as enacted by Parliament, this proposal
constituted an acknowledgement of the role of an independent electoral body by
59
government.
22. Prior to consideration of the Bill, the Uganda Citizens Compact on Free and
Fair Elections had made strong recommendations for the creation of a new
Electoral Commission. 60 This recommendation was also ignored by government
and subsequently the EC's structure and composition has remained unchanged
61
even as the country adopted a multi-party political system.
23. Still in relation to independence of the Commission, the Compact made a
recommendation to the effect that selection of Commissioners and staff of the
Commission should be subject to a process of open application, public hearing and
scrutiny by the Judicial Service Commission (JSC). 62 In addition to this proposal,
the staff and Commissioners were to be vetted by Parliament which on approval
would submit the , names of successful candidates to the President for
I

58

See Long Title and Clause ;I (a), Constitution (Amendment) Bill, No. 11 of2015.
59
See the Constitution (Amendment) Act, No. 12 of2015.
60
See Uganda Citizen Compact on Free and Fair Elections, Adopted at the National Consultation on Free and Fair
Elections, November 24-26,2014.
61
The Citizens Compact was an outcome of the National Consultation on Free and Fair Elections held between
November 24- 26, 2014. It incorporates the views of citizens as well as the different reform proposals made by
respectable groups such as the Citizens Coalition for Electoral Democracy (CCEDU), the lnterparty Political
Organizations for Dialogue (IPOD), the Electoral Commission (EC), National Consultative Forum (NCF) and
Cabinet. See Preamble to the Citizen Compact, p4.
62
See Para 1.1, Citizens Compact.
Page 22 of33

appointment. 63
To date, the President maintains the right to appoint
Commissioners and Parliament's role is simply to approve names of those
appointed. 64 This greatly compromises the.desired independence and impartiality
of the Commission especially in an electoral process where the President is a
candidate. Tnrthis respect; 'there is also a need for clear regulations concerning the
use of sta.te resources 'in carnp(ljgns, the development of rules stipulating
"expenditure ceilings" on 1elect;jon campaigns and the passing of laws requiring
parties to give a detailed account of their financial resources and campaign
65
.
expen d Iture.
24. ln terms of tenure which is another important way of guaranteeing the
independence of individual Commissioners in the exercise of their duties, the
Citizens Compact recommended a seven year non-renewable term for
Commissioners.66 In addition, the Compact recommended that once in office
individual Commissioners were to only be removed on grounds of gross
misconduct or incompetence following the same criteria and procedure as is
applied in the removal of High Court Judges. 67
25. As it is, Commissioners are still eligible to serve for two (2) terms of seven
years and under the Constitutional Amendment Act, 2015, they may be removed
68
from office on recommendation of a tribunal appointed by the President. In cases
where any of the Commissioners is deemed unable to perform his or her functions
as a result of mental or physical incapacity, he or she may be removed from office
on advice of a medical board appointed by the President with the advice of the
head of Health Services. 69 The challenge with the current provisions is that the
President is still responsible for initiating removal proceedings and he also has the
mandate to appoint members of the tribunal and medical board. Secondly, where
Commissioners serve more than one term, there is a likelihood that they will act to
the whims of the appointing authority in order to secure reappointment. This also
grossly undennines their independence and that of the EC.
26. The other reform proposals made by the Citizens Compact and which have also
been raised by this honorable Comi in the 2001 and 2006 Presidential Petitions
63

!bid
See Article 60 {I) ofthe Constitution ofUganda as Amended.
65
The Commonwealth Observer group Report, at p40.
66
See Para 1.2, Citizens Compa~t.
67
Sec Para 1.3, Citizens Compact.
68
See Article 60 (9), Constitution of Uganda, 1995 (As Amended).
69
See Article 60 (10), Constitution of Uganda, 1995 (As Amended).
Page 23 of33
64

include the following: (a) none involvement of security forces and other militias in
the electoral processes; 70 (b) impartiality of the police in electoral processes and
their restricted role of upholding public order/ 1 (c) equal, fair and balanced
coverage of Presidential candidates by the media, 72 including the transformation of
the 1l:..Jgand(l \Broadcasting.. ,Corporation into an independent service broadcaster,
coupled :with the establi~hment of an independent broadcast complaints
commission? 3 and (d) cpmpilation of a new, clean and verifiable list of voters
through a. transparent process. 74 All the aforementioned proposals are critical for a
fair democratic process yet they are far from being implemented.
27. It is submitted before this honorable court that the continued disregard of and
non-implementation of the recommendations of the Supreme Court as well as
proposals for reform from the various stakeholders is responsible for the current
political stalemate. That stalemate has led to widespread dissatisfaction among
Ugandans with the outcome of the 2016 Presidential elections. It is further
submitted that if not addressed this growing dissatisfaction may not only increase
election disputes but also act as a precursor to serious conflict and even violence.

VI.
THE QUESTION OF ENFORCEMENT
28. However valid and incisive the views and decisions of the Supreme Court
on the conduct of the presidential elections, it is the considered view of your
Amici that the key question is whether those views and decisions are enforced.
To this end, two matters are key, first, the organs and agencies which are
responsible for the enforcement of those decisions, and secondly the
mechanisms used to enforce them. By way of addressing these issues, the
Amici wish to offer a legal perspective first of all on the role of the Attorney
General in the enforcement of decisions concerning presidential elections, and
secondly. on creative ways of using the mechanism of the Structural
Interdictllnj unction~

70

See Para 3.1, Citizens Compact.

See Para 3.2, Citizens Compact.
72
See Para 8.6, Citizens Compact.
73
The Commonwealth Observer group Report, at p43.
74
See Para 2.1, Citizens Compact.
Page 24 of33
71

A. THE ATTORNEY GENERAL

29. It is necessary to begin this submission with a question: What is the proper
function of the office of the Attorney General vis a vis the enforcement of
decisions of the Suprerne Court in a presidential election petition? All the
functions ,.Of the AttorJiey 'General as contained in Article 119 of the
Constitufion implytliatsS/he::is sQpposed:tO.be the,;legal>custodian of the public
interest and to protect",it;a,gainst:violation~ In this respect,. Common Law has
long recognized that;the Attorney General is parens patriae (parent of the
nation) with a special responsibility to be the guardian ofthe Rule of Law. It
is the Rure of Law that protects individuals and society as a whole from
arbitrary measures and safeguards personal liberties.
30. Given its unique position in the Constitution, the Attorney General is the
main link between the Executive and the Judicial arms of the state, and thus
has a special duty to ensure full cooperation between the two as well as
maximum respect for any orders which bear the judicial stamp. In light of
the above, the Attorney General has a special role in not only ensuring that
there is fidelity of the institutions of government to the Rule of Law in general
and the Constitution in particular, but also that there is full respect for the
decisions and directives of the judicial arm of the State.

I
I
I

I
I
I
I
I
I

31. It is thus the submission of your Amici that in light of the above, it only just
and proper that in reaching a decision in this Petition the honourable Supreme
Court takes into consideration the various proposals for legal reform it advised in
2001 and 2006 and to determine whether these reforms have been duly considered
and acted upon by the 3rd Respondent, i.e. the Attorney General. It is our humble

submission that this has not been the case, which explains the recurrence of issues
in t~e Petition which would have been avoided had the Jrd Respondent given the
Legislature and t~e Executi~e guidance for comprehensive reforms which fully

encompass the gmda~1ce provided by this Honourable Court.

32. . The Amici su;bmit that the failure of the 3rd Respondent to guide the
Legislature an~ the Executive to effect the reforms suggested by this Honourable
Court h~s demed the country the chance to address the flaws in the electoral
sys~em m order to ensure that Presidential elections are conducted in a manner
whiCh ass~res. the people o~Ugan.da ofthe factthat consistent with Article 1(1) of
the ConstitutiOn P?~ers hes With them, in addition to Article 59(1) which
guarantees every Citizen above the age of 18 the right to vote. Indeed, it has
Page 25 of33

devolved to a situation of near-impunity on the part of those to whom these

directives have been issued.
33.

Additionally, the failure of the 3rd Respondent to act on the

recomme~dations of the Court undermines the principle of the Rule of Law and
violates :A1ticle 128{3) oLthe Constitution which provides that: All organs and
ageneies.o_'fthe State,:shalLaecord to the courts such assistance as may be required
to ensure<the effectiveness of the courts. It is submitted that such assistance
requir~s<ithe 3rdRespond~ntto give due attention to the recommendations of courts
that would have an effect on the law and would in effect avoid legal disputes and
assist the courts in discharging their constitutional mandate. The Supreme Com1 in
the case of Paul Ssemogerere & 2 Ors. v. The Attorney Genera/, 75 is very clear
aboutthe implications of such lack of assistance.
B. USING T:HE STRUCTURAL INTERDICT
34. Owing to the failure by the 3rd Respondent to provide full guidance to the
Executive and the Legislature on the reforms proposed by the Supreme Court on
two consecutive occasions in 2001 and 2006, it is the submission of your Amici
that this time around this Honourable Court use its inherent powers to give a
structural directive that enables the Court retain jurisdiction and demand that the
3rd Respondent reports back to the Court within a period of 6 months on the
measures it has taken on the matter.

35. In addition to the provisions of Article 128(3), the inherent powers of this
Honourable Court derive from Section 98 of the Civil Procedure Act, Chapter 71
of Laws of Uganda, which provides that: Nothing in this Act shall be deemed to
limit or otherwise affect the inherent power of the court to make such orders as
may be necessary for the ends of justice or to prevent abuse of the process of the
court.
36. The Court can use these powers to retain jurisdiction in any case and to
demand a report bacl<- to it on any measures which a particular party has taken in
compliance with a 90urt directive. This is what is referred to as a structural
injunction/interdict. To borrow from an article by Dr. Christopher Mbazira:
I

The structural interdict is a complicated form of interdict,

which involves the continued participation of the court in the
75

Constitutional Appeal No. I of2002 at p35.

Page 26 of33

implementation of its orders. Once the court has handed down

its judgment and made an order, it does not relinquish the case.
Instead, it monitors the implementation of its orders and may
require the parties to report back to it in this regard. The
structural interdict as a remedy in constitutional litigation is
traced. back to the United States school desegregation cases.
The leading.case in this respect is Brown v Board of Education.
This case was:propelled by the need to realise transformation
of the dual school system, based on race, into a unitary and
non-racial school system.
It required a great deal of
organisational reform to transform the entrenched racial
segregation, which had survived for hundreds of years. The
courts were required to transform this entrenched status quo
and to reconstruct the social reality in a radical manner. What
was required included establishing new procedures for student
assignments, new criteria for construction of schools, revision
of transport routes, re-assignment of facilities, curricular
modifications,
reallocation of resources, and above all,
establishing equity in the school system. The question is
whether all these objectives would have been achieved through
the conventional one-stance traditional litigation and remedial
procedures. The answer is a definite no; it required protracted
and unusual methods of litigation and remediation; hence the
resort to the structural interdict to ensure that the obstinate
school and local authorities implemented the
desired
76
reforms.

37. In Uganda, the Constitutional Court has recently found it fit to apply this
kind of relief in the case of Behangana Domaro & A nor v. Attorney General. 77 In
that case, the Court inter alia made the following order:
58. This case reveals significant misconduct of law enforcement
officers who ought to be prosecuted in accordance with the
Police 'Act. In order to address impunity we direct the
Registrar of this court to serve copies of this judgment upon the
76

Christopher Mbazira, "From Ambivalence to Certainty: Norms and Principles for the Structural Interdict in SocioEconomic Rights Litigatioi;~ in South Africa," Volume 28, No.l South African Journal on Human Rights (2008): I,
at p4.
77
Constitutional Petition No. 53 of 201 0.
Page 27 of 33

Director of Public Prosecutions and Inspector General of

Police with a direction that they investigate this matter and
report to this Court not later than 6 months from the date of this
judgment the results of their investigations and the actions that
.they have taken against the errant officers.

38. Irr\East Africa, the Kenyan .courts have led the way in using the structural
injunction. In the case dSatrose Ayuma & Ors V. The Registered Trustees Kenya
Railways Staff Retirement Scheme, 78 the Court, among others, made the following
order,
The 3rd Respondent shall within 90 days of this Judgment file
an Affidavit in this Court detailing out existing or planned State
Policies and Legal Framework on Forced Evictions and
Demolitions in Kenya generally and whether they are in line
with acceptable International standards.

In addition, the 3rd Respondent was ordered, "[w}ithin 90 days to file an

Affidavit in this Court detailing out the measures the Government has put in
place towards the realisation of the right to accessible and adequate
housing and to reasonable sanitation in Kenya as is the expectation of
Article 43(J)(b) of the Constitution."
39. Courts have mainly used this kind of order in cases where there is evidence
of impunity and reluctance on the part of parties to abide by court orders or carry
out required reforms. It is our considered submission that the failure to institute
court-mandated reforms of the electoral system over the last fifteen years is a
manifest demonstration of impunity on the part of the 3rd respondent and the
responsible agencies of government.
40. As discussed i.p the paper by Dr. Christopher Mbazira cited above (and
on Court record), there are various ways through which the esteemed court
can use the propos:ed remedy of a Structural Interdict, ranging from the

following:

78

Petition No. 65 of201 0 Constitutional and Human Rights Division of the High Court of Kenya.
Page 28 of33

a) A court concludes a matter but indicates that it remains open to any

party that wishes to report non-compliance; 79
b) A court concludes the matter but allows the parties to negotiate the
mo~t appropriate.. remedy and .its implementation.
Parties will be
dire~ted to Ii9tify:couftfionce.agreement is reached which will then be
recorded and>.b~'homesa courtorder; 80
c) A court concludes the matter but gives parties a time period within
\V:hich to reporcCto :court, usually by 'filing an affidavit, on the measures
taken to comply' with the order. Choice of means of implementation is
left to the concerned party or parties; 81
d) A court concludes the matter and gives concrete directions on what
measures should be put in place to comply and court sets a time period
for compliance with a directive ordering the party or parties to report
back to court or any other institution such as Parliament;
e) Court appoints a committee or special master to oversee
implementation with such committee or master keeping the court
appraised of the process. Sometimes the committee may be required to
advise on the most appropriate remedy and could be directed to hold
public hearings; or82
f) In extreme cases, a judge takes over implementation of the directive by

sitting in the concerned institution to oversee implementation.

41. The Structural Injunction or interdict has received both judicial and
scholarly approval. Professor Myriam Gilles describes the many ways in
which United States courts have used the structural interdict, while dealing

79

'

See Sibya & Ors v. DPP,' Johannesburg High Court & Ors 2006 2 BCLR 293 (Constitutional Court), available at
http://www.saflii.org/za/cases/ZACC/2005/6.pdf (accessed on 16th March 2016).
80
Liddle Lidd!e v. Board of Education of the City of St Louis 420 AFT AFL CIO. Also see Hart v. Community
School Board 383 F Supp 699 (EDNY 1974), available at http://caselaw.findlaw.com/us-8th-circuit/1195149.html.
(accessed on 16th March 20 16).
81
See Occupiers of 15 Olivia Road & Ors v. City ofJohannesburg & Ors 2008 5 BCLR 475 (Constitutional Court),
available at http://www.saflii.org/za/cases/ZACC/2008/J.html, (accessed on 16th March 2016).
82
Pennsylvania AssociatiQn of Retarded Children v. Pennslyvania 334 F Supp 1257 (ED Pa 1971 ), available at
http://www.leagle.com/decision/1971 1591334FSupp1257 11361/PENNSYLVANIA%20ASS'N.%20RETARD.%2
OCHILD.%20v.%20COMMONWEALTH%200F%20PA (accessed on 16th March 2016).
Page 29 of33

with objections raised on this form of relief. 83 In a 2014 publication, Professor

Brian Landsberg shows how the structural injunction has resulted in
legislative reforms that promote prisoners' rights as a way of de"aling with
syste1nic challenges. jn the. prison system. 84 (These articles are herewith
attached,and:marked a#ne~Ures "C" and "D").
42. Yom~Amici begeve)that~the instant Petition is a prop,e,r matter for the
use of the structun1l interdict. This is because of the systemic nature of the
challenges, that have been presented in presidential elections and especially the
legal naws identified .'PY the Court. It is also an intervention that would
address the persistenffailure on the part of the Attorney General to take the
directions of this Honourable Court seriously.
1

In the circumstances, your Amici would like to recommend that after

43.
final.determination ofthe petition, the Court issues a structural interdict that
would require the Attorney General to report back to Court and to
Parliament within six months of the judgment or such time as Court may
deem fit, on the measures s/he has taken in light of the observations of the
Court in 2001 and 2006, as well as in the current matter.
44. In specific terms, your Amici propose that the structural interdict
should be given separately from the orders pertaining to the determination of
the Petition and be phrased in the following terms:

"It is the considered view of this Court that observations and

suggestions related to law reform made by this Court, which is
also the highest Court of the country, should not be taken lightly,
and particularly not by the Attorney General who is the custodian
of the public interest. Such suggestions are intended to ensure the
smooth admip.istration of justice and are in line with Article
128(3) of the Constitution. We believe that they will go a long way
in aiding this; Court in the effective adjudication of presidential
election disputes. The systemic recurrence in presidential election
petitions of matters which would have been avoided by the

83

Myriarn Gilles, "An Autqpsy of the Structural Reform Injunction: Oops ... It's Still Moving," Vol.58 University of
Miami Law Review (2003), at p\43.
84
Brian K. Landsberg, "Does Prison Reform Bring Sentencing Reform? The Congress, the Courts and the
Structural Injunction," Vol.46 McGeorge Law Review (2014): 749-774.
Page 30 of 33

legislative and other reforms suggested by the Court is a matter of

grave concern.
In 'Hght of the above, we make the following orders:
I.

The 3rd Respondent.H hereby ordered within six months from

the date of,~thi~ Judgment to file a1~~port in this Court detailing
the mea~ure$ the office of the Attorney General has taken as
relates to ;the observations and suggestions of this Court on
legislative and other electoral reforms;

n.

The Third Respondent shall equally serve on Parliament through

the Speaker of Parliament a copy of the Report referred to in
para (i) above;

iii.

The Court will take further action as it may consider appropriate

upon receipt of the said Report.

iv.

This Judgment should be served on the Speaker of Parliament by

the Registrar of this Court."

VII. CONCLUSION AND RECOMMENDATIONS

45. The main goal of this amicus brief has been to demonstrate that the problem
with the electoral process in Uganda is a combination of impunity to long-standing
and reasonable recommendations on the part of the Supreme Court, and the lack of
their enforcement.
46.

To this end, our recommendations in summary are the following:

a)

A need for promulgation/harmonization of laws on Amicus Curiae

in light of the ruling in Prof. J. 0/oka-Onyango & 8 ors. (Amici) In
the Matter ofAmama Mbabazi. v. Yoweri K. Museveni & 2 ors;

b)

Specific application of the Amici concept regarding its

harmonization with the Civil Procedure Rules, the Judicature
(Supreme Court Rules) Directions (S.I No. 13 of 2001), and the
Presidential Elections (Election Petitions) Rules 2001;
Page 31 of33

c)

Enforcement of the law and systems of civic and voter education

in line with articles 4 and 61 of the 1995 Constitution;

d)

Introduction of a public calendar of electoral events;

e)

DevelQpment of the l~gaf framework on the introduction of

evidence in:,presidentialelection petitions;

f)

Harmonization of the varied constitutional timelines in order to

ensure that future elections are free, fair and transparent;

g)

The timely enactment of electoral laws;

h)

Reforming the processes of recruitment, vetting and appointment

of all election officials;

i)

Reiterating and reinforcing the independent status of the

Electoral Commission;

j)

Considering the implications of balanced media coverage of both

public and private actors in the presidential elections arena;

k)

Revisiting the relationship between the Electoral Commission and

Security agencies, with a view to making the Electoral
Commission the first point of call on all election-related security
matters;

I)

Revisiting the role of the Attorney General in the enforcement of

decisions of the Supreme Court, and;

in)

Deployment of the Structural Interdict as a mechanism to ensure

the e~fective enforcement of the decisions of the Supreme Court.

Page 32 of33

J. OLOKA:LONYANGO

SYLVIA TAMALE

CHRISTOPHER MBAZIRA

RONALD NALUWAIRO

ROSE NAKAYI

BUSINGYE KABUMBA

I,

-KAKUNGULU MA YAMBALA

DANIEL NGABIRANO

'

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