Uganda's Right to Recall: A Setback for Political Participation.
For a long time, Ugandans have desired for the ability to recall their Member of Parliament (MP) mid-term due to issues like non-performance or incompetence. Although the right seems to exist on paper, it has never been practically implemented in Uganda’s history.
Voters are left with the frustrating option of waiting five years to vote out an unsatisfactory MP, which can feel like a long wait, especially if dissatisfaction arises early on. In this blog post, I examine why exercising the right to recall in the current constitutional dispensation is impossible and suggest what changes are needed to turn this aspiration into reality.
Uganda is a state party to the International Covenant on Civil and Political Rights (ICCPR); Articles 2, 9(2),10,13(1), (20) of the African Charter on Human and Peoples’ Rights (African Charter) . It has also signed the African Charter on Democracy Elections and Good Governance (Democracy Charter). Article 25 of the ICCPR states that every person shall have the right and the opportunity to participate in public affairs, directly or through freely chosen representatives, and the same is reiterated in Article 13 of the African Charter.
Political participation includes freedom of expression. The voters express themselves through casting ballots, and the same is extended to the right to recall.
Uganda’s Constitution under Article 3 provides that the people shall determine how to be governed and Article 59 provides for the right to vote for Ugandans who are above 18 years. Furthermore, Article 38 grants Ugandans the right to participate in government affairs directly or through others. This therefore obliges Uganda to promote political participation in all spheres and ensure that all laws and policies conform to the international, regional, and national legal instruments, especially the Constitution.
The right to recall an elected member of Parliament is one of the powers given to citizens to influence how they are governed. When citizens can monitor the performance of their members of Parliament and recall them if they find them not worthy of representing them, this constitutes political participation.
Political participation includes freedom of expression. The voters express themselves through casting ballots, and the same is extended to the right to recall. Article 84(1) of the Constitution of Uganda states that electorates or any interest group have a right to recall their member of Parliament before the expiration of their term. The grounds for recalling a member of Parliament include physical or mental incapacity rendering that member incapable of performing the functions of the office;(b) misconduct or misbehaviour likely to bring hatred, ridicule, contempt, or disrepute to the office; or (c) persistent desertion of the electorate without reasonable cause. The procedure for recall is by way of a petition, signed by two-thirds of the registered voters of the constituency or interest group, which shall be delivered to the Speaker.
Despite this provision, Ugandans have never exercised the right to recall since the promulgation of the 1995 Constitution. Besides many other reasons, there is a significant legal challenge following the 2005 Constitutional amendment. The right to recall members of Parliament in the current multi-party dispensation is not legally possible. Article 84(7) states that “the right to recall a member of Parliament shall only exist while the movement political system is in operation.” This amendment, made in 2005, acts as a clawback clause- suggesting that the right to recall only applies within the movement political system, which Uganda no longer follows.
Article 69 of the Constitution grants Ugandans the right to vote, choose and adopt a political system they desire through free fair elections or referenda. In 2005, Ugandans in a referendum, voted to adopt a multiparty system, which meant a departure from the single-movement political system that existed then. Further, Article 75 of the Constitution prohibits the enactment of laws that promote a one-party state and Article 74 provides for the right to form political parties.
With the continuous subsistence of Article 84(7), it is clear that Ugandans, in the multi-party-political system cannot exercise the right to recall, as this is closed and entrenched to operate in the movement political system. The fact that clause 84(7) was inserted in the 2005 amendment indicates that this was not the will of the people but rather that of parliamentarians seeking to guard themselves against being recalled. There is no justification whatsoever for entrenching Article 84(7), and doing so effectively curtails Ugandans’ ability to participate in politics by removing a member of parliament when they deem fit.
To address this unfairness, a petition to the Constitutional Court challenging the constitutionality of Article 84(7) in light of Articles 3,59,69,73,74,75 is imperative. The Constitutional Court should find this clause unconstitutional and reaffirm the power of the people and their right to political participation.
With the proposed remedy, Ugandans will likely be able to pursue the right to recall, as long as they meet the requirements set out in Article 84. Additionally, there is a need for national consensus on amending this Article, such as by limiting the power of the Electoral Commission to be the final adjudicator on whether the recall petition is justified or not, the public inquiry notwithstanding. Instead, the Petitioners should be given the opportunity to challenge the decision of the Electoral Commission before the Speaker of Parliament makes the final declaration in Parliament.
In this light, parliament needs to enact comprehensive laws to facilitate the re-recall process. To date, it has not done so, likely due to a conflict of interest. However, it is crucial for parliament to create detailed laws to support the recall process and strengthen the political participation of Ugandans.
