The Electoral Commission (EC) on 26th December 2020 suspended campaign meetings in Kampala and 11 other districts and cities in the country due to the surging Covid-19 infections and alleged persistent violation of standard operating procedures (SOPs) by some political candidates.
The other districts included; Mbarara, Kabarole, Luwero, Kasese, Masaka, Wakiso, Kabarole, Jinja, Kalungu, Kazo and Tororo.
Two days after the directive, Kampala city Lord mayor Erias Lukwago petitioned the High Court seeking an interim order to block EC’s move.
In his petition, Lukwago argued that the directive by EC chairperson justice Simon Byabakama was illegal, irrational and violated his right to a fair hearing since all political players in the affected districts were not consulted before the issuance the directive.
He also alluded that he was compliant to the Covid-19 guidelines however he was shocked when a decision was taken without consulting him, which he said is was unfair in a free and democratic society.
However, on Monday the High Court Judge Musa Ssekaana dismissed Lukwago’s petition on grounds that EC’s decision was trying to stop the spread of the deadly covid- 19 and which is a justifiable reason not to accord a hearing since it was acting in an emergency.
Justice Ssekaana added that if the EC intended to conduct hearing in all the 12 districts the purpose of the emergency would be meaningless.
“Otherwise the intended purpose would have been defeated if the respondent was to delay the decision. Secondly, where it impractical to give a hearing to all affected parties like in this case, a right to be heard maybe suspended, ” he said.
On the issue of right for fair hearing as it was Lukwago’s centre of agreement, Justice Ssekaana said that right to a hearing may be excluded if prompt action needs to be taken by the administration in the interest of public safety, public health, or public morality, or broadly in the public interest.
“The reason is that hearing may delay administrative action, defeating the very purpose of taking action in the specific situation. In such situations, like the spread of Covid-19, it may not have been possible to give a hearing to the applicant and all the affected political players because of the urgency with which the administrative action needed to be taken by Electoral Commission; here the need for immediate and rapid action outweighs the need for providing procedural safeguards to the persons affected,” he ruled.
Lukwago also alluded in his petition that EC’s decision was a violation of freedoms of expression as it’s stated under Articles 1, 8A, 20(1), 28, 29, 38 and 50 of the 1995 Uganda Constitution and Section 1, 3, 4 and 9 of the Human Rights (Enforcement) Act.
However, Justice Ssekaana ruled that although there was a violation of freedoms of expression, Assemble and association, the limitation of the enjoyment of those freedoms is demonstrably justifiable due to the prevailing Covid-19 infections in those areas.
“There was no breach of the right to a fair hearing since the respondent was not sitting as a tribunal. There was justification for dispensing with the right to be heard due to urgency and emergency in order to stop the spread of the coronavirus. In the premises, I find the application devoid of merit and thereby dismiss it with no order as to costs. It is so ordered.”
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