Celebrating the Love of Friends in a Loving World

Celebrating the Love of Friends in a Loving World
Red Roses for You, My Sweet Friends ... Total Love.

My Sweet Friends

My sweet friends,

We grow closer to each other;

When we interact together and share ideas;

The common faith that we share,

Binds our hearts in one accord.

For sweet friendships last a life time,

When built on mutual respect, humility and understanding;

Throughout each different season,

We find we are one in life.

Sweet friends are there through times of grief;

And times when hope is gone;

Always there with encouragement;

So we can carry on.

I thank the Lord for you,

My true and faithful friends;

To fondly speak with you, whether we agree or not,

On this, our beloved blog;

For sweet friends will stay, no matter what;

Giving support.

Together, our hearts and minds truly unite;

With the amazing love of sweet friends.

In the spirit of true friendship,

Best wishes, my sweet friends;

May the Lord bless you abundantly.

I remain, yours truly,

B.B. Bakampa.

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Saturday, July 2, 2011

Parliamentary Autonomy vis-à-vis the Exercise of Executive Power in Uganda: A Case Study of the Case, Brigadier Henry Tumukunde Vs Attorney General and the Electoral Commission.

By Bakampa Brian Baryaguma
[Dip. Law (First Class)–L.D.C.; L.L.B. Student–Mak.]
bsaint3@gmail.com; www.bbbakampa.blogspot.com

1.0 Brief facts;

The case, Brigadier Henry Tumukunde Vs Attorney General and the Electoral Commission (Constitutional Appeal No. 2 of 2006) (unreported), was an appeal in the Supreme Court decided on 13th October, 2008. Briefly, the facts were that the appellant, Brig. Tumukunde, was a member of the 7th Parliament representing the UPDF. In 2005, a UPDF Forces Bill was tabled in Parliament some sections of which he opposed on the floor of Parliament before the relevant Committee. He went on to make utterances on radio stations particularly Radio One. Apparently this did not augur well with the President/Commander-in-Chief who summoned him to a meeting of the UPDF High Command on 27th May, 2005 and ordered him (appellant) to resign his seat in Parliament within 12 hours. The appellant wrote to the Speaker purporting to resign. Thereafter, the Speaker, through the Clerk to Parliament, notified the Electoral Commission of a vacancy in Parliament following the appellant’s ‘resignation’. The Electoral Commission went on to organise by-elections to replace him. He was later arrested and charged before the UPDF’s General Court Martial. Consequently, the appellant brought an action in the Constitutional Court seeking inter alia an order halting his replacement in Parliament and a declaration that the directive to him to resign and consequently his resignation was unlawful. The court of first instance, the Constitutional Court, dismissed his case holding that he had lawfully and validly resigned from Parliament. He appealed to the Supreme Court which in a lead judgment by Kanyeihamba, JSC, allowed the appeal.

1.1 Relevance of the case to constitutional jurisprudence;

This case is of constitutional significance. It addresses a number of constitutional issues more so the rights, privileges and immunities of members of Parliament. It also addresses other issues like the right to freedom of speech, equality and freedom from discrimination and separation of powers. Following below is an analysis of these constitutional principles.

1.1.0 Privileges and Immunities of Members of Parliament

The gist of the case is the enjoyment and protection of the privileges and immunities of Parliament. The role of the Speaker in so doing is put in the spotlight here. A.77 (1) establishes the Parliament of Uganda. Under A.79, Parliament is enjoined to make laws on any matter for the peace, order, development and good governance of Uganda, protect the Constitution and promote the democratic governance of Uganda. In order to perform these duties sufficiently well, A.97 provides for immunities and privileges of members of Parliament albeit not expressly. This article empowers Parliament to enact ad hoc laws.

Accordingly, Parliament enacted the Parliamentary (Powers and Privileges) Act, Cap. 258. S.2 of which provides that “No civil or criminal proceedings may be instituted against any member for words spoken before, or written in a report to, Parliament or to a committee, or by reason of any matter or thing brought by the member in Parliament or a committee by petition, bill, motion or otherwise.” The Speaker of Parliament is entrusted with the duty of ensuring that this is done. In this case, the Speaker neglected this duty and Court interpreted this as a breach of procedure and law.

However, the privileges and immunities of members of Parliament are not only to be found in statute law but also in conventions, rules and practices of Parliament. In his judgment, Justice Kanyeihamba traces some in the history of England. He recalls that in 1642, Charles I sought to arrest five MPs and demanded that the Speaker (Lenthall) identify them. In response to the request the Speaker declined to identify them saying that he had neither eyes to see nor ears to hear except as directed by Parliament whose servant he was.

1.1.1 Right to Freedom of Speech and Expression

Brigadier Tumukunde also pleaded that the act of the UPDF of restraining him from expressing himself on all political matters, irrespective of the Constituency he represented, moreover while exempting others from the same restriction, amounted to a violation of his right to freedom of speech as enshrined under A.29 of the Constitution. Court agreed with him but only for those comments he made while in Parliament. In reference to his Radio One comments, Justice Engwau held that the appellant “was on a frolic of his own when he made public statements during talks without permission from the UPDF Forces Council” in which regard he had subjected himself for disciplinary action as a member of the UPDF.

In agreement with the appellant, Kanyeihamba cited a number of cases in English history pertinent to freedom of
speech of the members of Parliament. He cited the case of King Vs Wilkes [1] (though later overturned by Parliament) where the Court of Common Pleas had held that members of Parliament were protected from seditious libel as a privilege.

He also cited another case where members of the public bombarded an M.P with telephone calls following a controversial question he had asked in Parliament. The bombardment of calls followed a publication asking people to call him. The Committee of Privileges of the House of Commons found that this was a clear breach of his freedom of speech.

1.1.2 Separation of Powers

This case highlights the doctrine of separation of powers and its relevance to Uganda. It particularly addresses the extent to which Executive power can be exercised. The Constitution establishes three arms of government: the Legislature under A.77, the Executive under A.98 and the Judiciary under A.126 and gives them distinct duties. The same however, creates overlap whereby the different organs have a say in the functioning and management of the other. It is this overlap that negates the application of separation of powers in Uganda. Professor Kanyeihamba [2] rightly notes that separation of powers means that the three arms of government must be kept in three different compartments though he finally blunders by concluding that what we have in Uganda today is nevertheless separation of powers. In this case, Justice Engwau says that separation of powers means that the three arms must be independent of each other and separate from one another. One of the cardinal elements of separation of powers is the requirement that no arm of Government should interfere in the activities of the others.

In this case, the President/Commander-in-Chief instructed the appellant to resign his seat in Parliament. He (appellant) wrote a letter to the Speaker of Parliament purporting to comply. The Speaker proceeded to act on it, and declared his seat vacant without any investigations on it whatsoever; something which according to the Court was done hastily. He sued and court concurred with him that this was not effective resignation. The Speaker’s action was therefore bad in law. The President’s directive was also held to be unconstitutional. It was very wrong and grossly irregular for the President/Commander-in-Chief and the UPDF High Command to hold Brigadier Henry Tumukunde, an MP, accountable for the words he uttered before the relevant committee of Parliament.

Therefore, here we see interplay of the three arms of Government––with one meddling in the affairs of another. The Judiciary’s involvement in order to correct the mess created by the Legislature and Executive is not separation of powers but checks and balances of powers. The unconstitutional relationship between the Executive and the Legislature (Parliament), as exhibited in this case, is further evidence that separation of powers can’t and doesn’t exist at all.

1.1.3 Equality and Freedom from Discrimination

Brigadier Tumukunde averred that the UPDF’s act of restraining him as a member of Parliament from expressing himself on all political matters irrespective of the constituency he represents while exempting other MPs from the same restriction was a violation of his right to equality and freedom from discrimination.
Court answered him partly in the affirmative and partly in the negative. It should be remembered that Tumukunde’s statements which annoyed the military authorities were both made in Parliament and outside Parliament on a radio station. As far as those made on the floor of Parliament were concerned, Court held that they were privileged and so holding him accountable for them was a violation of his rights. That while in Parliament, he is entitled to equal protection and enjoyment of all parliamentary rights and privileges like other members. Justice Engwau held that “Members of Parliament, including the appellant, were entitled to all the powers and privileges, including deliberations on all matters of national interest during a debate or motion in Parliament,” and that “His decision not to support the Bill was completely privileged and unquestionable.”

But as far as his comments made on Radio One were concerned, court held that the army leadership was right to hold him accountable for them. Kanyeihamba said that “As long as the appellant remains an active soldier he also remains subject to the discipline and rules of the UPDF command, institutions and superior officers, only subject to the provisions of the Constitution and laws of Uganda.” As for Justice Engwau, he said that “The freedom extended to the appellant in Parliament did not rescue him against his controversial statements to the press outside Parliament.” He further said that the appellant “was on a frolic of his own when he made public statements during talks without permission from the UPDF Forces Council”

As far as the Electoral Commission issue was concerned in this case, it was held that the Commission had done no wrong by organizing fresh elections to replace the appellant because it had been notified by the Clerk to Parliament of the existence of a vacancy in accordance with A.81 (2). Court reasoned that like any other stranger, the Electoral Commission could not have known what went on in Parliament and could only rely on information obtained from those in the know namely, the Speaker, other Officers and members of Parliament.

1.2 Contribution to Constitutional Jurisprudence

A.1 of the Constitution states that the Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda. Under the ultra vires doctrine, anything that is contrary to the provisions of the Constitution is null and void. In this case, the President’s/Commander-in-Chief’s directive to the appellant to resign from Parliament was held to be unconstitutional, ultra vires and the purported resignation ineffective. Justice Mulenga said that the resignation was effective having been made with the appellant’s knowledge but held that it was invalid in law because it was made against his will. It follows therefore, that the decision of their Lordships serves to entrench supremacy of the Constitution in this country and by extension the rule of law. The principle here is that Executive power must be exercised only within the ambits of the law.

Court pronounced itself on the controversial issue of army representatives in Parliament. It noted that army representation in Parliament should be revisited by this nation and I entirely agree. I believe the presence of the army in Parliament compromises the provisions of A.208 (2) which inter alia places on the army the duty of being nonpartisan. It is well established that the army can’t be anti Government. For this reason army MPs have to side with and vote for the Government in Parliament; so one wonders whether this is not tantamount to being partisan. In any case, if the army can’t vote in favour of the Opposition, does it mean that it doesn’t serve those opposing the Government? It is my considered view that this negates the nonpartisan requirement.

The idea of army representatives in Parliament was first introduced in Uganda by the 1967 Constitution under A.40 (1) (c) (i) which stated that “…up to ten members of the Uganda Armed Forces may be nominated to the National Assembly.” I believe this was for purposes of political expediency by a President who had failed to manage his army and so resorted to pampering it as a survival tactic. It is high time we stopped this pampering by nurturing a truly people’s army that needs not any undue pleasantries to serve this country. It is the province of the army to protect this country against aggression but not to legislate for it. The NRM Government today takes advantage of the 10 army MPs to amass numbers in Parliament so as to easily pass all its Bills and proposals–– the fact that it has an overwhelming majority not withstanding. The presence of the army in Parliament is, as Professor J. Oloka-Onyango [3] says, “…use of military force to achieve political objectives…”

1.3 Conclusion

In conclusion, I must say that this case shows that Uganda’s struggle for constitutionalism and the rule of law is not yet lost after all. The court came out boldly to declare a high handed act of the President/Commander-in-Chief as being unconstitutional. In inference, it is clear that the independence of he Judiciary in Uganda is still observed. It is reason enough to have the trust and confidence that our Judges can make decisions independently of even the most powerful among us and that when they do, those in power won’t seek to victimize them like Idi Amin did to his Chief Justice Benedicto Kiwanuka: all this largely in a continent of leaders to whom criticism is taboo. The rule of law is still paramount. This, however, does not mean that as a state we are where we want to be. In the recent past we have seen this very Government and President infringing or attempting to infringe against the rule of law in this country. There is no assurance yet that the Government and the President will not repeat it. This therefore, calls for activism by all and sundry and litigation such as this by Brigadier Henry Tumukunde should be encouraged.


Notes and References

1. (1763) 2 Wilson 151

2. Justice Prof. Dr. George William Kanyeihamba, CONSTITUTIONAL AND POLITICAL HISTORY OF UGANDA FROM 1894 TO THE PRESENT, Centenary, Publishing House Ltd, Willis Road Namirembe p.298

3. J. Oloka-Onyango “Dictatorship And Presidential Power In Post Kyankwanzi Uganda: Out Of The Pot And Into The Fire” Rights and Democratic Governance Working Paper Series, Number 3, 2006 at p.1