Date: 20^th February 2012

Hon .Members of the 9^th Parliament

Parliament of the Republic of Uganda

Re: The Position of the Law relating to EALA Elections.

Hon Members, as you proceed to debate the amendments to the Rules of Procedure of the Parliament of Uganda, including the Rules in Appendix B thereto for Elections of Members of the East African Legislative Assembly, I found it important as an Advocate, a person interested in East African Affairs, the applicant in Application No.6 of 2011 at the East African Court of Justice and the National Legal Advisor of the Democratic Party to forward this Legal opinion to you for your perusal in that noble  process.

The current law relating to the elections aforesaid is buttressed in the sources hereunder;

1. The Treaty for the Establishment of the East African Community. Particularly Articles 6(d), 50
2. The Vienna Convention on the Law of Treaties Articles, 13,14,15,16,17,18,27 and 42-72.
3. The Constitution of The Republic of Uganda.Particulary Art 8A, Objective XXVIII (i) b, Articles 21(1and 2), 29(1e), 89(1), and 94(1).
4. Jacob Oulanya versus The Attorney General of Uganda, Constitutional Petition No. 28 of 2006.
5. The Democratic Party and Mukasa Fred Mbidde versus The Secretary General of The East African Community and The Attorney General of Uganda Application No 6 of 2011 Arising out of Reference No.6 of 2011 PENDING.
6. It is equally important to note that The East African Legislative Assembly Bill 2011 has been passed by EALA into law awaiting assent by the Summit confirming all the above positions.

Article 50 of The Treaty provides that,

“The National Assembly of each Partner state shall Elect,

not from among its members,

9 members who shall represent as much as it is feasible,

 the various Political Parties represented in the Assembly,

Shades of opinion, gender and other

Special interest groups, in accordance with the procedure as the National Assembly of each Partner State may determine”

The meaning of the above Article of the treaty and also as fortified in the jurisprudence at the East African Court of Justice and The Constitutional Court are therefore as follows;

1. Elections take place at and by the National Assembly according to the treaty
2. Elections include contested or un-contested elections; this was fortified in the case of Prof Peter Anyang Nyong v AG and ors.
3. That the method of distribution is to be among all parties represented at the National State Assembly.
4. That the provision is rather qualitative and not quantitative and thus considers the nominal prevalence of a political party at the Partner State Assembly for eligibility to be represented at EALA AND NOT BY HOW MANY MEMBERS OF PARLIAMENT A PARTY IS REPRESENTED IN THE NATIONAL ASSEMBLY.
5. That any reference to Numerical strength of a political party as a standard requirement by a Political Party for representation to The East African Legislative Assembly is unlawful and infringes the treaty.
6. The East African Legislative Assembly is an organ of the Community under Article 9 of the Treaty and as such in elections therefor, the treaty applies with equal force.
7. That the Democratic Party and Anor, as the Applicants in Application and Reference No 6 of 2011 have a mandatory entitlement to a slot, being a political party represented at the National State Assembly.
8. That the Secretary General to the East African Community has already written to all Partner states including Uganda to comply as aforesaid.
9. That there is an  interim injunction over parliament emanating from the case of The Democratic Party and Anor Versus The Community and the Attorney General, already served on the Speaker and the Attorney General of Uganda which  bars the Ugandan Parliament from conducting elections until Rules are amended to suit the above requirements.
10.  That the East African Legislative Assembly Elections bill 2011 was passed by the East African Legislative Assembly and the same provides for the manner of elections representative of all parties represented at the State Assemblies .Parliament is enjoined to enact Rules of Procedure that operationalizes Article 50 and not one seeking to amend it .It’s important to note that the Ugandan Parliament has no Powers to Amend the Article 50 to the Treaty.
11. Parliament has to conclude the business of amendments of the Rules if Uganda is to have elections within the stipulated time frame which is currently at  3 months to the expiry of the current term.(1^st March remains the proper date for elections since the current term expires in June this Year)
12. That entitled Political Parties should be required to nominate their candidates that will contest for the slots accorded to them either competitively or un-contested for Parliament to Elect.
13. That the Democratic Party shall not vacate our injunction until respect for our entitlement is met.
14. That the East African Court of Justice has fixed 29^th February this year as the return date by the Applicants of the Democratic party and another versus the AG and the Community on which we shall report the outcomes of the amendments where if such amended rules are found to contradict the Treaty, and Permanent Injunction shall inevitably be slummed on to the Ugandan Parliament that no elections of EALA will take place.
15. That Independents have a mandatory Slot for EALA.
16. That there are only 6 Political Parties and 1  shade of opinion represented in the house of Parliament in Uganda namely;

(i)                The National Resistance Movement –NRM

(ii)              The Forum for Democratic Change-FDC

(iii)            The Democratic Party-DP

(iv)            The Uganda People’s Congress-UPC

(v)              The Conservative Party-CP

(vi)            The Justice Forum-JEEMA

(vii)          The Independents

The above have to vie for the 9 slots obtaining at the regional Assembly and any attempt to distribute a slot for each of the entities above remains lawful and feasible within the meaning of the Treaty and does not warrant the National Parliament to develop a formula for the same. Two slots remain available for the special interest Groups and /or any other manner of distribution preferred by the Assembly.

Independent Candidates may by gazette be notified of the campaigns and as such expression of interest thereby is done to the Clerk’s office, being the returning officer in the circumstances for such category of persons to express interest and to subsequently vie for the same.

Mukasa Fred Denis Mbidde (0752697046)

B.Mass (MUK), LLB (MUK), Dip-LP (MUK), LLM-Cand (MUK)-Advocate

Chief Legal Adviser-DP

Chief Legal Adviser.

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 Reference No 2 of 2012,

 The Democratic Party ——– Applicant

 Versus

 1. The Attorney General of Uganda (Sued in representative capacity)- 1st Respondent

2. The Attorney General ofKenya                                                      – 2nd Respondent.

3. The Attorney General ofBurundi                                                    – 3rd Respondent.

4. The Attorney General ofRwanda                                                      – 4th Respondent.

5. The Secretary General East African Community.                             – 5th Respondent.

 The case filed by the Democratic Party through its Legal Adviser is for Declaratory Orders to all the respondent countries that non- deposit of a Declaration Infringes the Law as required under Article 5 of the African charter on Human and Peoples Rights and Art 34(6) of the Protocol of the Charter on Human and Peoples Rights for the establishment of the African Court on Human and Peoples Rights, and the Vienna Convention on the Law of treaties 1969.

 All the East African Countries Ratified the above Charter and Protocol but have not (The Respondents), Other than Tanzania, Deposited a Special Declaration submitting to the Competence of this Court to handle individual cases by Partner States Nationals and Rights NGOs with grievances to access this court as required by the above law.

 Without Depositing the Declaration aforesaid only African Governments as State Parties have the audience of this court to hear their grievances on human rights violations although it’s more unlikely that governments have grievances on rights violations, in fact they are the biggest violators of rights making it look like the poacher turned game keeper.

 It is for this reason that Democratic party Chief Legal Adviser Fred Denis Mukasa Mbidde of (Mbidde & Co Advocates) together with Justine Semuyaba of (Semuyaba, Yiga & Co Advocates) have jointly ,on behalf of the Party filed and will accordingly  urgue this case at the East African Court of Justice sitting at Arusha.

 This is going to be anEastAfricanLandmark case according to the Registry with a full BAR of East African Attorneys General sued in vicarious capacity.

 The above case will go along way to reestablishUgandaandEast Africaon the Course of Integration based on the Rule of Law and Constitutionalism. East African Governments according to Rule 30 of the Rules of Procedure for the East African Court of Justice have Each 45 days within which to file their responses and the Applicant will then have 45 days within which to file rejoinders for the case to be set down for hearing and consequent determination.

 By Mukasa Fred Mbidde

Chief Legal Adviser-DP

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