• Francis Obonyo
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A mere possibility of not including some voters who have not attained the voting age of 18 years will not amount to disenfranchisement.

Miscellaneous Cause No 177 of 2020, Nagami Gloria Linda Vs Attorney General & The Electoral Commission of Uganda.

In this case, Hon Justice Ssekaana Musa stated that the cut-off date set by the Electoral Commission is intended to facilitate smooth management of the elections to avoid electoral irregularities and to avail the different players with a clean National Voters Register. A mere possibility of not including some voters who have not attained the voting age of 18 years will not amount to disenfranchisement.

Nagami Gloria Linda lodged an application under Articles 1(4), 38, 45, 50, 59 of the Constitution, Sections 3(1) and 4 of the Human Rights 9 (Enforcement) Act, 2019, Rules 5, 6, 7, 8, 9, 11 of the Judicature (Fundamental and other Human Rights and Freedoms)(Enforcement procedure) Rules,2019). The application sought to challenge the omission of the Electoral Commission Uganda to ensuring the regular, free and fair elections are held, compiling, maintaining, revising and updating the Voters’ register when it announced the closure of the update exercise of the Register on 23rd December 2019 after which there would be no further extension of the same. The actions the applicant believes disenfranchised 972,400 (Nine Hundred and Seventy-Two Thousand, Four Hundred) Ugandans who have turned 18 years in 2020.

In resolving this issue, the Court stated that the law is clear in providing the right procedure in regards to objections that emanate from the National voters register and voters’ rolls, which is the tribunal subject to review by the commission. The Court further agreed with the submissions of the 1st Respondent and find that the Applicant did not follow the right procedures while making any objections and this application would fail on that ground alone. The Court noted that all persons who possess or will possess on the day of the election the Constitutional and Statutory qualifications of voters are entitled on making proper application to the Electoral Commission (Registrar) to have their names registered on the voters register in their respective districts. Conversely, persons not entitled to vote are not entitled to be registered. A qualified voter who has complied with the law and who is registered has a personal right to have his name remain on the voters register in accordance with the law.

A person who has not attained the statutory age is not qualified to be registered and as such, no such name can be entered on the register as this would be against the Constitution. Anticipatory registration cannot arise until the person has attained the voting age of 18 years. Therefore the right to vote only arises at the attainment of the voting which must be preceded by an application to register and the name to be entered on the voters’ register.

A right to vote is not an automatic right since the enabling electoral laws provide that only persons whose names appear in the national voter’s register may vote. Even a citizen of majority age whose name is not in the national voter’s register cannot vote. Therefore, the requirement to have the name in the National voter’s register means that every citizen must register before they can exercise their right to vote. This is a Constitutional imperative.

The process of registration and voting needs to be managed and regulated in order to ensure that the elections are free and fair. The Electoral Commission was established to manage the electoral process in a systemic manner in order to ensure that the elections are free and fair. The Electoral Commission Act and other Electoral laws make detailed provisions concerning registration, voting and related matters including the way in which voters are to identify themselves in order to register. The detailed provisions of the electoral laws serve the important purpose of ensuring that those who qualify for a vote can register as voters and that they can only exercise the right to vote once.

The right to vote is attained upon proper registration process duly verified in accordance with Electoral laws otherwise; the failure to adhere to the provisions of the law could render the exercise of the right to vote nugatory and have grave implications for the fairness of elections. This underscores the importance of the registration process of every person who has attained the voting age of 18 years. There cannot be any disenfranchisement of voters (persons) unless those persons are duly registered, voters. The Electoral Commission must have a cut-off date in order to facilitate a clear electoral exercise with the certainty of actual voters.

It bears emphasis that the electoral players including the political parties and candidates and civil society need to use the national voter’s register which is cleaned of non-voters or dead persons. In the same spirit, voter registration cannot remain open-ended since this will be a recipe for electoral disaster if voter registration was allowed even on the last date before elections. The Electoral process started in earnest prior to the set date of national elections in January 2021 and there were elections of lower local councils and interest groups like women youth and disabled persons which were conducted much earlier.

Therefore the cut-off date set by the Electoral Commission is intended to facilitate smooth management of the elections to avoid electoral irregularities and to avail the different players with a clean National Voters Register. A mere possibility of not including some voters who have not attained the voting age of 18 years will not amount to disenfranchisement.

Conclusively, the Court stated that there is a consensus among judiciary that matters which need discretionary actions (exercise of discretionary power under the Electoral Commissions Act) like postponement of the poll, cancellation of Notification or setting election date or timelines under an election road map e.t.c according to circumstances present during the election process, on the part of Election Commission, should not be interfered with during electoral process except where exceptional circumstances of a particular matter require to do so.