By Bakampa Brian Baryaguma
1.0 Brief Facts
The case of Brigadier Henry Tumukunde vs Attorney General, and the Electoral
Commission,[1]
was an appeal in the Supreme Court decided on 13th October, 2008.
Briefly, the facts were that the appellant, Brig. Henry Tumukunde, was a member
of the 7th Parliament, representing the Uganda People’s Defence Forces
(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.
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 of
Parliament, purporting to resign.
Thereafter, the Speaker, through the
Clerk to Parliament, notified the Electoral Commission (EC) of a vacancy in parliament,
following the appellant’s “resignation.” The EC organized 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 his eventual resignation, were unlawful. The court dismissed his petition,
holding that he had lawfully, and validly, resigned from parliament. He
appealed to the Supreme Court which, in a lead judgment by Justice Kanyeihamba,
allowed the appeal, finding that his resignation from parliament was unlawful,
and invalid.
1.1
Relevance
of the Case to Constitutional Jurisprudence
This case is of great constitutional
significance. It addresses a number of constitutional issues, more so the
rights, privileges and immunities of Members of Parliament (MPs). It also
addresses other issues like the right to freedom of speech, equality and
freedom from discrimination, separation of powers, and checks and balances. The
following discussion analyses these constitutional matters.
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 is particularly highlighted here. The Constitution establishes
the Parliament of Uganda.[2]
Under A. 79, parliament is enjoined to make laws on any matter for the peace,
order, development, and good governance of Uganda, to 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. To this end, the article empowers parliament to enact enabling
laws.
Accordingly, Parliament passed the Parliamentary (Powers and Privileges) Act,[3] 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.’[4]
The Speaker of Parliament is charged with the duty of ensuring that this is adhered
to. In this case, the Speaker neglected this duty, which court interpreted as a
breach of procedure and law.
The privileges, and immunities of MPs
are not only to be found in statute law, but also in conventions, rules, and
practices of Parliament. Justice Kanyeihamba traced some in the history of
England, recalling that in 1642, King Charles I sought to arrest five MPs, and
demanded that the Speaker (Lenthall) identifies 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 UPDF’s action 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 in respect of those comments he made while in parliament.
Regarding his comments on Radio
One, 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
Council,’ and had therefore rendered himself subject to disciplinary action, as
a UPDF member.
In agreement with the appellant, Justice
Kanyeihamba cited a number of cases in English history pertinent to freedom of
speech of the Members of Parliament. For instance, he cited the case of King Vs Wilkes,[5] (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 alluded to another case
where members of the public bombarded an M.P. with telephone calls, after a
controversial question he had asked in parliament. The avalanche 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 / Checks and Balances
This case highlights the doctrine of
separation of powers, and its relevance to Uganda, particularly 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. It gives them distinct duties, because one of
the cardinal elements of the doctrine of separation of powers is the requirement
that no arm should interfere in the activities of the others. Prof. Kanyeihamba
avers that separation of powers means that the three arms of government must be
kept in three different compartments.[6] In this
case, Justice Engwau observed that separation of powers means that the three
arms must be independent of each other, and separate from one another.
The Constitution, however, also creates
overlap, whereby the different organs may have a say in the functioning, and
management of the other, thereby negating the absolute application of
separation of powers in Uganda, by providing, instead, for checks and balances,
in appropriate circumstances.
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 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 Brig. 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 the judiciary lawfully meddling in the
affairs of parliament. 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 cooperation between the executive
and the legislature (parliament), as exhibited in this case, is evidence that absolute
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 action 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.
Remember that Brigadier Tumukunde’s
statements, which annoyed the military authorities, were made both 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. Justice 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.’ For his part,
Justice Engwau, 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
Council.’
As far as the Electoral Commission organizing
fresh elections to replace the appellant as MP was concerned, it was held that
the Commission had done no wrong in so doing, 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 EC 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 has 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 found 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,
and the rule of law in Uganda. The principle enunciated 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 parliamentary army
representation should be revisited by this nation. I entirely agree, because I
believe the presence of the army in parliament contravenes the provisions of A.
208(2) which inter alia places on the army the duty of being non-partisan. It
is well known that the army can’t be anti-government. Thus, 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 non-partisan
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 this pampering stopped,
by nurturing a truly people’s army that doesn’t need 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 notwithstanding. The presence of the army in parliament is, as
Professor Oloka-Onyango says, tantamount to ‘… use of military force to achieve
political objectives….’[7]
1.2
Conclusion
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.
The independence of the judiciary in
Uganda is still observed, giving reason enough to have faith, 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 Chief Justice Benedicto Kiwanuka: all this largely in a
continent of leaders to whom criticism is taboo. The rule of law is still
paramount in Uganda.
This, however, does not mean that as
a country, we are where we want to be. There have been many attempts, in the
recent past, of this very government, and President, to infringe or attempt 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 progressive citizens; and spirited litigation such as
this, by Brigadier Henry Tumukunde, should be encouraged.
Notes and References
[1]
Constitutional Appeal No. 2 of 2006 (unreported).
[2]
See, Art. 77(1), of the Constitution of
the Republic of Uganda, 1995.
[3]
Cap. 258, Laws of Uganda, 2000.
[4] Ibid., Section 2 thereof.
[5]
(1763) 2 Wilson 151.
[6]
Justice Prof. Dr. George Wilson Kanyeihamba, Constitutional and Political History of Uganda from 1894 to the Present,
at 298.
[7] 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 1.
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