The ruling National Resistance Movement (NRM) is set for a national delegates’ conference on December, 15, 2014.
A copy of the notice calling the meeting has been widely published in the press and top on the agenda is amending the party constitution.
The notice itself does not specify the nature of the amendments which are sought. Instead, a separate call for amendment proposals has been issued by the acting secretary general, Dorothy Hyuha.
However, there is persistent speculation that one of the changes will see the powerful position of secretary general downgraded to what has been termed as a fulltime-business party secretary. Unlike the current secretary general, who is elected by the party members, the new party secretary will be appointed by the party chairperson.
This speculation continues to gain momentum. Writing in the New Vision of Monday November, 10, 2014, referring to himself as an NRM supporter, Morrison Rwakakamba justifies the change on the grounds of avoiding intra-party friction and building cohesion.
The discussion on the politics, pros and cons of an elected secretary general versus one appointed by the chairperson may not be settled this way or the other until the party delegates’ conference.
But there is a problem. Come December 15, when NRM delegates are asked to make the change, the question in the minds of legal and constitutional experts will be: “Is what they are being asked to do legal?” The answer, to me, seems to be simple: “It is not.” Political parties in this country are governed by the Constitution of 1995 and the Political Parties and Organisations Act, 2005.
These two legislations have comprehensive provisions relating to who qualifies to hold a political party office and how they are chosen. Even a quick glance at these provisions should tell you why it is my position that membership to national organs of our political parties must be by election, by party members. Article 71 (1) (d) of the Uganda Constitution requires office-bearers in the national organs of a political party to be elected.
I would think this prohibits ascending to office by appointment. The relevant part thus reads: “Members of the national organs of a political party shall be regularly elected from citizens of Uganda… ” Lawyers and judges have a notorious history of spending precocious time interpreting the meaning of simple words such as is, from, to, at, etc.
But that “shall” connotes a mandatory obligation is hardly disputable. The Political Parties and Organisations Act, 2005 is equally emphatic. Section 10 (1) obliges parties to comply with the Constitution and specifically articles 71 and 72 as regards internal organisation. Subsection two re-iterates the need for elected leaders in the following terms: “Every political party or organisation shall elect such persons as may be determined by the members of the political party or organisation as members of the executive committee… ” Again, the use of “shall elect” cannot be ignored.
The act further proposes a regular interval of at least five years for carrying out the elections. I would rather the nation is not tempted to digress into the thankless task of searching for the meaning of “elect”.
True, it is not defined in any of the two laws, but ordinary usage implies members participating in choosing their leaders. It is in this context that the word is used in all electoral laws in the country. Lastly, the Oxford English dictionary defines elect as an act of holding an office by voting.
It is not possible, therefore, under the currently legal regime for a political party, including the ruling NRM, to have appointed officials sitting on its national organs.
The Electoral Commission, which is mandated under section 11 of the Act with publishing in the national gazette and approving alterations to party constitutions, is thus reminded of its obligations to uphold the national Constitution
The author is an aocate of the High court of Uganda.
Source : The Observer