Deepening Proactive Disclosure and Access to Information During Elections in Uganda.

I am delighted to contribute the preface for this report on Proactive Disclosure of Information
and Elections in Uganda during the 2021 general elections. The initiative was commissioned
by the Centre for Human Rights, University of Pretoria (the Centre), as part of a research series
that assesses State compliance with the Guidelines on Access to Information and Elections in
Africa (the Guidelines). The Guidelines were adopted by the African Commission on Human and
Peoples’ Rights (ACHPR) on 10 November 2017, during its 61st Ordinary Session. This normative
instrument provides guidance to electoral stakeholders who have a duty to proactively disclose
information in their possession or control towards enhanced election transparency, integrity and
legitimacy. The electoral stakeholders identified in the Guidelines are: authorities responsible
for appointing the Election Management Bodies; Election Management Bodies; political parties
and candidates; law enforcement agencies; election observers and monitors; media and
online media platform providers; media regulatory bodies; and civil society organisations. The
Ugandan report is the fourth in the research series after South Africa (2019), Ghana (2020), and
Tanzania (2020).
The Guidelines seek to promote the realisation of the right of access to information, as
stipulated under Article 9 of the African Charter on Human and Peoples’ Rights (African Charter).
Access to information is not only an autonomous right but enables the exercise of other rights
protected under the Charter, including Article 13 on the right to participate in the affairs of
one’s Government. The ACHPR adopted the Guidelines to reinforce the normative protection
for access to information and connected rights along with other soft law instruments such as
the Model Law on Access to Information for Africa (2013) and the Declaration of Principles on
Freedom of Expression and Access to Information in Africa (2019). This normative basis aims
to enhance political stability and good governance in Africa through regular, transparent, free,
fair and credible elections. To achieve this, citizens must have access to accurate, reliable and
timely information throughout the electoral process. Without this information, they cannot
exercise their right to meaningful political participation. The interdependence between the right
to access to information and political participation is reiterated in various instruments within
the African Union (AU) including the African Charter on Democracy, Elections, and Governance
(ACDEG), the AU Declaration on the Principles Governing Democratic Elections in Africa, and
other international and regional frameworks.
States Parties to the African Charter, including Uganda, have an obligation to adopt legislative,
judicial and other measures to give effect to the Guidelines. This report assesses Uganda’s
compliance with the Guidelines during the 2021 general elections and specifically evaluates the
extent to which Uganda’s legal and institutional framework promotes proactive information
disclosure. It further assesses the performance of key election stakeholders in proactively
disclosing public interest information before, during, and after the general elections held on 14
January 2021. The report’s evaluation highlights positive progress but also reveals a number
of issues of concern. I offer some reflections on these findings in my capacity as the Special
Rapporteur on Freedom of Expression and Access to Information in Africa.
Firstly, I wish to commend the government of Uganda and its Electoral Commission (EC) for
overcoming the challenges of the COVID-19 pandemic to organise the 2021 general elections.
Indeed, as recognised by the Government in what was characterised as ‘scientific’ or ‘virtual’
elections, Information and Communication Technologies (ICTs) and the media played a crucial
role in ensuring access to information during the 2021 general elections. However, reports of
the misuse of COVID-19 regulations to clamp down on the campaign activities of the opposition,
and limit avenues for access to information are viewed with concern.

The Constitution of Uganda grants its citizens the right to access information held by the State
or any other State organ, with only certain exemptions in place. Commendably, Uganda passed
the Access to Information Act (AIA) in 2005, further reinforced by the Access to Information
Regulations of 2011. However, the report’s findings reveal that the Act and the Regulations
introduced new exemptions not envisioned by the Constitution and international and regional
law, necessitating its revision or narrow interpretation.
Importantly, the Uganda Constitution provides for the independence of the EC. However, the
report notes the transparency and limited stakeholder involvement in selecting and appointing
EC members that may have implications for its independence. Given the importance of an
independent and competent Election Management Body (EMB) in delivering free, fair and
credible elections, Uganda is urged to adopt more transparent and participatory appointment
The EC’s efforts to facilitate access to information during the 2021 elections through media
briefings, social media, websites, and its national and regional offices are appreciated. The
EC is urged to reflect on the shortcomings revealed in the report including poor inclusivity
of persons with disabilities (PWDs) and illiterate individuals, unjustified denial of information
requests, and failure to avail the national voters register for inspection on its website. The
post-election period also offers a crucial opportunity to assess the identified technical glitches
such as the malfunctioning of biometric voter verification kits, late delivery of polling materials,
and delivery of incorrect ballot papers. The EC should put in place the necessary measures
and systems to reduce such problems in future elections. Further, in fulfilling the judgement
in Kalali Steven v. Attorney General & Electoral Commission, the Government of Uganda and
the EC are urged to adopt necessary and reasonable measures to ensure the realisation of the
right of political participation for Ugandans in the diaspora, and prisoners.
Equally noteworthy are the findings on proactive disclosure by other electoral stakeholders.
Political parties, election observers, law enforcement, media and media regulatory bodies,
election observers and monitors, and civil society organisations are urged to consider the
Guidelines and the recommendations of the report to improve their information disclosure
practices. On the part of law enforcement, the reported heavy-handed approach in implementing
COVID-19 measures by law enforcement agencies in Uganda that disproportionately affected
the opposition members and their supporters is regrettable. Further, while national security is
a legitimate ground for restricting access to information, it should not be abused to defeat the
exercise of the right. In particular, law enforcement should disclose information on charges and
location of arrested and detained persons throughout the electoral process. Law enforcement
agencies are urged to respect the rights of arrested and detained persons, and their right to a
fair trial.
Additionally, of due note is the regrettable implementation of an internet shutdown during
the 2021 general elections by the Uganda government. Access to the internet is increasingly
indispensable to the realisation of freedom of expression, access to information and other
civil and political rights as well as socio-economic rights. More so, in the context of an election
that largely relied on ICTs and the media. In this regard, Guidelines 26, 27 and 28 obligate
internet regulatory bodies to refrain from shutting down the internet or any media during
elections. Any internet shutdown is only permissible in exceptional cases under international
law. The underlying reason should be proactively disclosed and be authorised by law; serve a
legitimate aim; and be necessary and proportionate in a democratic society. Any such decision
should also be subject to judicial review. The Uganda Government is urged to adhere to
relevant international and regional normative standards on freedom of expression and access
to information to promote meaningful political participation in elections by refraining from
shutting down the internet.

The report is an invaluable resource to electoral stakeholders to assess their performance
with regard to compliance with the Guidelines and other international, regional and national
frameworks on access to information. In undertaking State reporting obligations under Article
62 of the African Charter, Uganda should report on the progress made towards the fulfilment
of its obligations under these instruments. In this regard, shadow or parallel reports submitted
by Non-Governmental Organisations to complement the State report, in accordance with Rule
79(3) of the African Commission’s 2020 Rules of Procedure, are welcome.
Finally, I would like to express my gratitude to the Centre for Human Rights for delivering
another report in the series assessing State compliance with the Guidelines. It is my hope that
this report will add to existing literature and serve as a basis for decision-making by electoral
stakeholders, and greater advocacy for the implementation of the Guidelines and other relevant
Honourable Commissioner Ourveena Geereesha Topsy-Sonoo
Special Rapporteur on Freedom of Expression and Access to Information in Africa
African Commission on Human and Peoples’ Rights