By Mubatsi Asinja Habati
Passing Kings Bill was biggest blunder
A new parliament has been ushered in at a time when the August House has become largely a rubber stamp of the executive. The Independent’s Mubatsi Asinja Habati spoke to retired Supreme Court Judge and a renowned constitutional scholar, Justice George Kanyeihamba, about the changing role of parliament.
What is your assessment of the 8th Parliament’s performance?
The 8th Parliament compared was the worst this country has ever had compared to others. They were responsible for infringing many provisions of the Constitution, ignoring the basic rights and fundamental freedoms of Ugandans by either enacting illegal laws or complying with illegitimate decisions of the Executive.
Secondly, they condoned many allegations of corruption, embezzlement that were very well documented by witnesses or sworn in evidence and by the media before the Public Accounts Committee of Parliament (PAC). When I was Minister of Justice and Attorney General the President set up a Commission of Inquiry into the theft of public funds and embezzlement by public officers. We acted on the evidence of PAC, which acts as a tribunal. We dismissed over 300 civil servants who had been implicated by PAC for financial mismanagement, corruption and abuse of office. Only two people ever challenged our decision, one, on political grounds and the other correctly because PAC had made a mistake which we had not seen during our inquiry. When allegations are made against a Minister or any public servant it is not Parliament to exonerate them, it has to a tribunal or Court of law to do so.
So the 8th Parliament was wrong when it exonerated members accused of mismanaging or looting the Commonwealth Heads of Government Meeting (CHOGM) funds?
Members of Parliament who did so were not wrong to exonerate those implicated in the CHOGM scandal but Parliament acting against was principles and rules of justice. In my opinion, none of those people was exonerated. If I were any of them I would insist that I be taken to court to clear my name under indicial evidence. In this country, there is only one person who exonerates people who have been convicted by competent courts of law, and that’s the President; not Parliament. That is when the President is exercising the prerogative of mercy.
In your opinion, what would you single out as the key achievement of the 8th Parliament?
Frankly I can’t think of anything that the 8th parliament achieved other than voting themselves a large pension. Is that an achievement? If it is, they achieved that.
What was their biggest failure?
They violated the Constitution by passing laws which were unconstitutional. The Traditional rulers and Cultural Leader’s Bill was unconstitutional. Had any king or traditional ruler indulged in partisan politics, he would have been charged under the 1995 Constitution even before it was amended. So you ask how were the members of the 8th Parliament convinced to pass an illegal bill illegally for the control of rulers and leaders. Even then the Speaker of Parliament was supposed to send the Bill to the Electoral Commission to carry out a Referendum in the whole country on whether to amend the traditional rulers and cultural leaders’ law. Then the Electoral Commission would have directly sent it to the President for ascent if the referendum agreed to the amendment. That that law did not go through all these steps so even though it’s now on the statute books, has no legal validity. It is null and void.
So Buganda has reasonable grounds to challenge this Act?
I would be very surprised if any judge let alone two or more said the Buganda Case challenging this Bill is not justified. I would be amazed. History would quote that judge as having been ignorant of our Constitution and Laws.
The 9th Parliament has been sworn in and started its work. What should the public expect of this Parliament?
Whether one has been appointed minister or not, the MPs should perform in accordance with the interests of the citizens of this country and in compliance with the functions of Parliament as spelt out in the Constitution. They should work for the good and welfare of all Ugandans and not get blinded by interests of sections of any people regardless of politics, ethnicity or religion. Most importantly, they must hold the Executive to account. They should be members of Parliament who are not easily intimidated. They should not be persuaded by offers of money, bribes, or positions to abandon their duty to the nation and people of Uganda.
Given that this Parliament is dominated by the NRM party, there are public concerns that it will dance to the tunes of the ruling party. How can such a Parliament remain independent of the Executive arm of government?
I want to compare this Parliament to the National Resistance Council (NRC) of which I was a member. Then members of that Council were 100% NRM but we often criticized government proposals. We exercised our independence. I would therefore expect that where a Parliament is dominated by members of the ruling party, members should exercise their independence to the fullest extent. It is incumbent on members that their debates are balanced and in pursuit of national interests. Because they don’t face a danger of being defeated, they should air their concerns and opposition to questionable government policies freely and vigorously. I hope that the current practice of making decisions by caucus will be used sparingly. Since you are the majority in parliament why do you fear to work in the open? The MPs from the opposition parties are only a handful. Even if they were to oppose you 100% you will always win. Why don’t you let the public know how you debate these issues publicly not through caucuses?
President Museveni wants to amend the Constitution especially regarding conditions of granting bail to suspected protesters who he calls rioters. What is your view about this?
That law will interfere with justice. The right to be granted bail is a sacred institution for any civilized society where democracy and the rule of law predominate public affairs. But I am amazed by those who campaign for this law. I am told that some of them are lawyers. How can they not realize that it affects other fundamental human rights enshrined in our Constitution. One of such rights is that whoever is accused of an offence in Uganda is presumed innocent until proved guilty by a court of competent jurisdiction or admits the offence. To say that all those suspected of riot and other offences should be jailed for 6 months without trial is a negation of anything that is democratic and descent. Rioting is a misdemeanor (less serious offence) not a felony. Rioting is one of the minor offences like breaking traffic law, indulging in bar brawls, etc. These small offences carry fines when one is convicted. To imagine that someone in NRM could suggest that a misdemeanor should be equated with murder, treason, rape or economic sabotage, etc is beyond my comprehension. It is absurd. Besides, there are absolute freedoms which anybody can’t take away. These rights include the right to a fair hearing and the presumption of innocence until proven guilty which this proposal threaten if it became law. These rights are sacrosanct just like the freedom from slavery and servitude, the right to be produced in court (habeas corpus), right from inhumane, degrading and torturous treatment. Nobody, not even Parliament can amend those rights. How do you say we have convicted you because you were walking on the streets and we believe you were going to riot therefore you go to jail for 6 months? What are you punishing? Sometimes our obsession to suppress freedom of others leads us to do absurd things.
What advice do you give the 9th Parliament when such bills are brought to Parliament?
So far I respect this 9th Parliament. They have not done anything wrong. They must reject any Bill of any kind that comes to suppress the freedoms of our society. Those of them who are historians, will recall that a senior lawyer in Obote I regime, Grace Ibingira, co-sponsored and steered the Detention Bill in Parliament which was passed into law and within two years he was one of the victims of the same law and jailed until Idi Amin, the dictator released him. Do our leaders, however mighty they might be, ever think about posterity? The new Parliament should look at legacies they wish to leave behind for the generations.
In your view, how should the minority opposition MPs in this Parliament do their work?
Members of Parliament should be nationalistic regardless of which party they belong to. Whether they are in Parliament or NRM, DP, FDC or UPC party, they are all opposition members against injustice, bad governance and people who do not care about the welfare and integrity of this country. To me, all MPs are members of opposition who care or should care about a just and a good government which comes with right policies for its people and which protects our environment, oil, coffee, etc. They may all be NRM or opposition members but they must support good policies that come from both government and opposition in this country. Let us not hide the truth behind labels and slogans.
What is your advice to Rebecca Kadaga as Speaker
I hope she will perform much better than her predecessors. Her election as party’s choice for Speaker is indicative of the winds of change blowing within the NRM.