THE NINETH EAMJA CONFERENCE AND ANNUAL GENERAL MEETING REPORT
THEME: “THE ROLE OF THE EAST AFRICAN JUDICIARIES IN THE ELECTION PROCESS”
IMPERIAL RESORT BEACH HOTEL ENTEBBE, UGANDA
10TH - 15TH OCTOBER, 2011
ACRONYMS:
EAMJA- East African Magistrates and Judges Association
CMJA- Common Wealth Magistrates and Judges Associations
UJOA- Uganda Judicial Officers Association
JSC- Judicial Service Commission
ULRC- Uganda Law Reform Commission
ICJ- International Commission for Jurists
EMBs- Election Management Bodies
HE- His Excellency
VP- Vice President
FPTP -First Past The Post electoral system
NEC- National Electoral Commission of Tanzania
EC- Electoral Commission
ICCPR- International Convention on Civil and Political Rights
EDR- Electoral Dispute Resolutions
1.0 Introduction
This is a report on the 9th EAMJA Conference which was organized by the EAMJA Council and UJOA with support from the Uganda Judiciary, Law Africa, ULRC and ICJ Kenya. The Conference took place between the 10th and 15th October, 2011 at Imperial Resort Beach Hotel Entebbe, Uganda.
1.1 Target Group
This Conference was intended to benefit members of the Judiciary as well as EMBs of the East African states. The target group included; Judges, Registrars and Magistrates from East Africa, representatives from the EMBs and JLOS Secretariat.
1.3 Focus Areas
The Conference evaluated the role of East African Judiciaries in the election process drawing experiences from Kenya, Tanzania, Rwanda, Burundi and Uganda. The topics discussed included an over view of the electoral process in East Africa, trial and management of election petitions by courts. The topics were discussed with a view of adopting best practices from the different countries.
2.0 Session one:
2.1 Opening Remarks by Justice Lawrence Gidudu- Executive Director JSI:
He welcomed the delegates to the conference and observed that various themes have been discussed at such conferences since the first conference in Mombasa. This was however the first time the issue of election processes was being discussed. He noted that elections have become competitive and volatile and elections managers have a challenge to deliver a credible outcome. Courts are called upon to administer the areas the electoral processes have failed and therefore election managers and the Courts should sit together and deliberate on these issues. The process of elections starts many months before the polling day. If the process was managed well from the start, polling day will deliver a proper outcome. However if it was mismanaged, then polling day will deliver different results.
He recognised the presence of and introduced the following people:
_ The principal Judge of Uganda, Hon Justice Yorokamu Bamwine
_ The Chair Person of the Electoral Commission Uganda, Eng. Dr. Badru Kiggundu
_ The Chair Person ULRC, Mr. Agasha Mugasha
_ Secretary to Judiciary, Mrs. Dorcus Okalany
_ Chief Registrar, His Worship Henry Peter Adonyo
_ ICJ Kenya , Mr. George Kegoro
_ Members from Law Africa, Conference sponsors
He then welcomed the President of EAMJA, Hon. Fredrick Ochieng, to address the delegates.
2.2 Opening Remarks by the President EAMJA, Hon. Fredrick Ochieng
He welcomed delegates to the Conference and wished participants fruitful deliberations at the Conference. He made reference to the poem recited by HW. Juliet Hatanga entitled “the Orals experience” which he equated to the experience of Kenyan Judicial Officers when being vetted by JSC.
He noted that the theme of the Conference which was about election management and management of disputes arising from election processes was very relevant because all member countries had their own experiences, good and bad, arising from elections.
He urged participants to come up with best practices from the different experiences.
2.3 Opening remarks by the General Secretary CMJA, Dr Karen Brewer
She told participants that the CMJA was privileged to be represented at the EMJA Conference. She also informed members that though she had participated in several Conferences in the past, this was her first time in Uganda. She observed that the theme of the Conference was an issue that CMJA is particularly interested in.
She introduced the two colleagues she travelled with as:
_ Mr. Paul Norton
_ Mr. Mark Guthuli
She informed participants about the upcoming CMJA Conference scheduled to take place from the 10th to the 12th September 2012 at Munyonyo Common Wealth Resort Hotel Kampala with the theme “Justice for Everyone: Myth or Reality” and welcomed members to the Conference.
2.4 Opening Remarks by Head of Delegation Rwanda, Hon. Gashongole- Judge of the Commercial Court Rwanda
He informed participants that the Rwanda Association was registered just the previous month with EAMJA. The constitution of the Association, he said, includes Judges and Registrars.
He also informed members that he is the Vice Chair Person of their Association and went on to introduce the members he travelled with from Rwanda. He thanked the organizers of the Conference for the invitation to attend the Conference.
2.5 Opening Remarks by Justice Wamalwa- Justice of Appeal Tanzania representing the Chief Justice of Tanzania
He delivered the apology from the Chief Justice of Tanzania and thanked the organizers of the Conference for extending the invitation to them. He noted that 35 delegates had travelled from Tanzania to attend the Conference.
He went on to inform members that it was important that Democracy prevails over all obstacles and Courts should play their role without fear or favour.
He noted that the five member states of East Africa are currently experiencing the public democratic exercise (elections) and hoped that the Conference would come up with implementable resolutions. With those remarks, he wished the participants fruitful deliberations.
2.6 Opening Remarks by Deputy Chief Justice of Kenya, Hon. Justice Nancy Baraza
She delivered greetings and apologies from the Chief Justice of Kenya. She acknowledged the support of the sister Countries as Kenya goes through the process of the review of their Judiciary.
She stated that the theme of the Conference was relevant to all players in the preparation of elections. Kenya is yet to put up administrative processes to help dispose of election disputes expeditiously.
She encouraged members to participate actively in the discussions and concluded by introducing the delegation from Kenya.
2.7 Opening Remarks by the Chief Justice of Burundi, Hon. Justice Ngendazi
He thanked the organizers for inviting him to the Conference and hoped to share experiences of other countries and also give his own experience from a democracy which is rich because of the trouble the country has gone through.
2.8 Opening Remarks by the Chief Justice of Uganda, Hon. Justice Benjamin Odoki
He conveyed the regrets of H.E. the President of Uganda, who was unable to attend the opening ceremony due to State duties. He Congratulated the Chief Justice of Burundi and the Deputy Chief Justice of Kenya for being appointed to the high offices.
He also welcomed Dr. Karen Brewer and thanked her for agreeing to host the CMJA in Uganda next year which he indicated would be a challenge but Uganda is up to it.
He stated that the theme of the Conference is a unique one. The Conference presented an opportunity for planners, managers and adjudicators of elections and the resultant disputes, to come up with the best practices. He added that further opportunity exists for other Judges from other jurisdictions to share their experiences and come up with practical solutions to managing disputes arising from the election process.
He observed that Jurisprudence in election petitions was not as developed as other branches of the law. Previously change of Government could be by way of coups but this has been replaced with competitive elections and the laws and processes have been streamlined. These laws should be reviewed to come up with necessary reforms.
He added that political disputes are unique because if not well managed, they can cause violence. Our Region is not new to this election related violence and therefore disputes must be handled expeditiously and fairly.
He informed members that he was privileged to preside over the launch of the Accra Principles of Electoral Justice in his capacity as a member of the Electoral Integrity Group. The principles which contain global standards for conducting elections and adjudication of disputes arising there from were meant to restore integrity and trust in the electoral process and advance democracy and human rights. He encouraged countries to use these principles to develop standards that suit their countries.
With those remarks, he declared the Conference open.
3.0 Session Two:
Topic: The Electoral process in East Africa
Session MC- Hon Waki, Kenya
Session Chair- Justice Wangutsi, Uganda
Speaker- Mr. Kennedy Nyaundi- Member of the Interim Electoral Commission, Kenya
3.1 Presentation of Mr. Kennedy Nyaundi:
He noted that electoral processes play a role in a democracy. Poor management and choreographed elections are a liability to democracy and are a source of political and social instability. He observed that politics of our region was informed by vile attempts to steal the match before the game has even started.
He highlighted the different parties/ stakeholders that are involved in the electoral process and these, he said, include:
_ Political parties
_ The voters
_ Civil society
_ Election observers
He noted that a sound electoral process must reflect the participation of the citizens. Voters who are un-informed about the nature and power of the ballot may be a danger to democracy; he/she may sell the ballot or fail to cast it.
He informed members that many East African states were under British Colonial rule and therefore inherited the First Past The Post electoral system (FPTP). Although this system is simple and easy to administer, it creates an environment in which representatives can get elected on small numbers of public support. The electoral system influences the campaign strategies and so, it is critical that the electoral systems are revisited.
He noted Courts’ critical place in electoral dispute resolution and building the confidence of the citizens in Electoral Management Bodies (EMBs).Courts must remain the structure that guarantee fairness in the whole process.
He highlighted the reforms in Kenya which have been a result of the concerted effort of EMBs and other stakeholders in the electoral process. Unless electoral processes are considered in a manner that encourages the confidence of the citizens, the elections will no longer be an opportunity for citizens to make a choice but a source of conflict and economic degeneration in the community.
Discussion:
During the plenary discussions, the following issues were raised:
_ The judiciary should not only come in to do post mortem but be involved from the start of the election process.
_ The EMBs should analyse the cases decided by Courts with a view to taking remedial steps to avoid future occurrence of election disputes.
_ There is conspicuous lack of training of electoral officers by EMBs.
_ There is lack of accountability for ballot papers handed over to polling officers, those used and those returned un used.
_ Whether Court judgments reflect the fact that the Courts recognise that election petitions arise from highly politicized processes.
_ There is need for civic education of voters.
_ Political parties don’t want to send their polling agents to be trained for fear of them being bribed or compromised.
_ The different electoral systems need to be analyzed before they are implemented.
_ Political parties should be funded equitably by the Government.
_ There is rampant abuse of incumbency by candidates who use state resources during campaigns.
4.0 Session Three
Topic: Country perspectives of electoral processes in East Africa
Session MC: Gerald Nyika, Tanzania
Chair: Mr. Phillip Tunoyi
Speakers: Mr. Kawishe- NEC Tanzania and Eng. Badru Kiggundu -EC Uganda
4.1 Presentation of Eng. Dr. Badru Kiggundu:
Presenting his paper titled “The election process in East Africa: an overview of Uganda”, the speaker briefed participants about the background and objectives of the Electoral Commission in Uganda and took the participants through what constituted a free and fair election. A free and fair election process, he stated, is one where the playing field is reasonably level and accessible to all voters, parties and candidates.
He informed members of an instance where the Judiciary in Uganda intervened during the election process by appointing members of the Tribunals to hear objections from the public during the display of voters’ registers as provided for in the Election Commission Act Cap 140 as amended.
He called on the Judiciary to dialogue with the Legislators and the Executive to develop laws that strengthen the capacity of the Electoral Commission.
He concluded by informing participants that the legal framework for conducting elections and referenda and the activities of the EC have greatly improved but there is still yet more to learn.
4.2 Presentation by Mr. Emmanuel Kawishe:
In his presentation on the electoral processes in Tanzania, he briefed participants on the history of elections in Tanzania and the current status of NEC in Tanzania –which, he indicated, currently lacks an Executive Director among other existing vacancies.
He shared his experience of the election process in Tanzania which comprises of the following steps: Demarcation of constituencies, Registration of voters/update of the permanent national voters’ register, Nomination of candidates, Election campaigns, Voting, counting of votes, tallying of votes, and declaration of election results.
He also briefed participants about the systems in place that were updated established and/or updated which include: Candidate management system, Voters’ interaction system, Result management system, Logistical management system, Communication and Incident management system, Geographic information system, Facial recognition system and the maintenance of integrated system and voter’s database.
He indicated that the challenge of the Commission has been maintenance of the integrated systems, both hardware and software since these change every day with the changes in technology. He concluded by stating that the electoral process in Tanzania does not greatly differ from those in the sister countries.
4.3 Discussion:
During the plenary discussion, the following issues were raised:
_ Participants noted the difficulty in deciding election disputes basing on affidavit evidence which is in most cases bulky and incomplete.
_ Funding of elections should in as much as possible be done by the state.
_ The Electoral Commission should be given powers to handle disputes that arise at the early levels of the election process.
_ Political party funding is still an issue due to challenges such as the viability and credibility of some political parties.
5.0 Session Four:
Topic: Trial and Management of electoral petitions
Session MC- John Eudes Keitirima- Uganda
Session Chair: Ibrahim Juma- Tanzania
Speakers: Elessy Sainna ICJ Kenya andGeorge Kegora Executive Director ICJ Kenya
5.1 Elsy Sainna- ICJ Kenya and George Kegora- Executive Director ICJ Kenya:
In a paper presented jointly by the speakers, they gave an over view of trial and management of election petitions by Courts with specific reference to Kenya.
They gave a back ground of the election process in Kenya which led to the 2008 post election violence that later informed the reforms that have taken place in Kenya today.
They went on to high light the specific obligations of the Courts. Basing on research undertaken by the Carter Centre, they indicated that a number of key obligations founded principally in the ICCPR and Regional Treaties can provide the cornerstone for understanding the international legal principles for EDR mechanisms specific to the courts which included but were not limited to: The right to an effective remedy, non-discrimination and equality before the law and the right to a fair and public hearing.
They made a recommendation that special courts or tribunals be established during the election period to hear disputes arising from the election process to avoid delays.
They concluded by stating that Kenya has, since the 2008 election violence, made several reforms to the laws and procedures on the election process. These however, are yet to be tested at the next presidential elections.
5.2 Discussion:
During the plenary discussion, the following issues were raised:
_ The time given under the law for disposing off election petitions is too limited for court to traverse all the evidence brought to court.
_ Judges were encouraged to come up with innovative methods for expeditious disposal of the disputes.
6.0 Session Five:
Topic: Trial and Management of election Petitions by Courts: Country Experiences
Session Chair: Justice Martha Koome
Speakers: Justice Kibuuka Musoke- Uganda, Justice Makaramba, Tanzania and Justice Ngendanzi, Burundi
6.1 Presentation by Justice Kibuuka Musoke- Uganda:
In his presentation on the Uganda perspective, the presenter informed members that Uganda has 3 categories of elections, the Presidential, Parliamentary and Local Government Elections - each having a specific law. The Constitution of Uganda remains all embracing because it has the norms for regular free and fair elections that are conducted from time to time.
He also informed members that Uganda has had two Presidential election petitions, in 2001 and 2006. He briefed members on the filling process of the petitions at different levels and added that petitions must be completed within one year from the date of filing. Faced with a large volume of work, the Judiciary devised means complete the petitions within six months.
He noted that there are both internal and external challenges during the process, the internal stemming from the interpretation of laws and procedure.
6.2 Presentation by Justice Makaramba- Tanzania:
Giving the Tanzanian experience, the speaker informed participants that Tanzania use the FTPT electoral system where the winner is determined by a plurality, that is, majority vote.