May 13, 2020

HABIB SERUWAGI: Legal aspect of extending the 2021 Presidential Elections


An Electoral Commission official counts votes cast at a Polling Station in 2016 general Elections

It is possible to extend elections beyond May 12th, 2021 when the current tenure of President expires, only that the President must step aside.

Article 105(1) provides for President elected under the constitution to hold office for a term of five years and the extension of this tenure can only be done through a referendum as per Article 260(1)(f).

Conditions that would necessitate an extension of presidential elections cannot allow a referendum to be held.

So, the option of extending the President’s term of office is out of the question. It therefore means, the current President cannot serve beyond 12th May 2021 without causing a constitutional crisis.

The above scenario does not mean that elections can’t be extended beyond the current tenure of the President though.

The constitution under Article 104(7) had envisaged a situation where the term of the President may expire, and we have no new elected President much as the scenario there is different from the current crisis of an epidemic.

Under 104(7) the circumstance would have been if Presidential elections are successfully challenged twice. However, the same provision can be adopted to the current situation.

And in that case, the Speaker of Parliament would perform the functions of the office of the President until a new President is elected and assumes office.

According to Article 109(9) the whenever the Speaker assumes office under such an arrangement, a presidential election shall be held in accordance with Article 109(2) which provides for elections to be held within six months.

What the constitution envisaged is that a country can be without a substantive President but under no such circumstances would a country be without parliament.

For the above scenario to happen, the President has to announce a state of emergency as per Article 110(1) and parliament can keep extending it under clause 3 of the same article.

Parliament will have to extend its tenure as per Article 77(4) which provides that where there exists a state of war or state of emergency which would prevent a normal general election from being held, Parliament may, by resolution supported by not less than two-thirds of all members of parliament, extend the life of Parliament for a period not exceeding six months at a time. Once that is done, it would fill the gap that may arise should the President’s term expire before elections.

Then parliament exercising powers under Article 103(3)(d) will determine the period within which the elections shall be held. The extension period can only be for six months at a time but for as long as the conditions subsist this can be done for infinite times. It’s therefore not possible, at least constitutionally, to announce the extension of the 2021 elections to 2023, at once.

The President has against the advice of the Speaker and another unnamed top Minister as was reported in the media, refused to take the option of announcing a state of emergency and instead chose to work under the Public Health Act. It is inconceivable that he would do the same in the near future.

This is partly because a declaration of a state of emergency takes away the powers of the President and revoking it requires parliamentary approval.

The thought of an extension that will see the President temporarily relinquish power to the Speaker is something that President Museveni is not likely to allow and therefore the elections will happen as planned.