MPs free at last

By Agather Atuhaire

Supreme Court ruling on rebel MPs removes burden of toeing party line

On Oct.30, in a 6:1 majority, the Supreme Court in Kampala ruled that an MP cannot lose their seat in the House upon expulsion from their party.  The ruling overturned an earlier Constitutional Court decision that implied that expulsion from a political party upon which one was elected to Parliament automatically meant an MP losing their seat in Parliament.

The Supreme Court ruled that “political parties cannot subvert the will of the people.”

“We are extremely happy,” said one of the petitioners, MP Wilfred Niwagaba, after the ruling, “This ruling isn’t just for the four of us but for Parliament as an institution.”

Niwagaba said that with the ruling, all MPs will be able to stand for what is right even if it differs from the position of their respective parties.

One of their lawyers, Peter Walubiri said the MPs will now be free to stand for the interests of their constituents even when those interests are at variance with those of the party.  “The ruling will enforce discipline on party leaders to learn to be accommodative,” he said adding that that will enhance democracy and good governance.

Dan Wandera Ogalo, another renowned lawyer agrees with Walubiri. He said the ruling has given MPs breathing space and put political parties on notice to allow internal democracy.

“I think that the MPs in the next Parliament will be freer,” he said, “It also sends a clear message to them (MPs) that they are in Parliament to speak for the people that voted them and not for Political Parties.”

Court was presided over by justices Jotham Tumwesigye, Benjamin Odoki, Galdino Okello, John Tsekooko, Christine Kitumba and Esther Kisaakye.  Justice Kisakye wrote the dissenting judgement and agreed with the earlier decision of the Constitutional Court.

But the Supreme Court ruling has been hailed by many as a landmark ruling which completely removes parliament out of the grip of the executive.

As legislator Wilfred Niwagaba told The Independent, “The ruling by the Supreme Court has redeemed Parliament from the bondage of the executive and political parties”.  Niwagaba (MP Ndorwa East) and three others—Theodore Ssekikubo (Lwemiyaga), Mohammad Nsereko (Kampala Central) and Barnabas Tinkasimire (Buyaga West) stood to lose their parliamentary seats after the ruling party expelled them in April 2013.

The Attorney General and the NRM based their decision on Article 83 (g) of the Constitution which says a member who crosses from one party to another or from one party to become independent         and vice versa should resign his or her seat in Parliament to seek fresh mandate from the voters.

But Rebecca Kadaga,  the Speaker of Parliament refused to act on the advice of then Attorney General Peter Nyombi to force the quartet to vacate their seats after their expulsion from the party.

NRM through its members; Saleh Kamba and Mary Agasha took the matter to the Constitutional Court among other things accusing the speaker of acting unconstitutionally by not abiding by the Nyombi’s advice to force the quartet out of Parliament.

The Constitutional Court in February 2014 ruled that the four could not continue to sit in Parliament and ordered the speaker to block them from accessing the Parliament premises.  The court also ordered the Electoral Commission to organise by-elections in their respective constituencies.

The four appealed the ruling in the Supreme Court and also sought an injunction stopping the concerned parties from executing the orders of the Constitutional Court. The Supreme Court granted the injunction pending the disposal of the main appeal.

They argued that if they let the NRM get its way, it would completely kill debate in Parliament as members would only say what their party wants and allows them to say, which they argued would make Parliament the executive’s mouthpiece.

In the past, the party would use its caucus to intimidate the members who did not agree with its position. The clout of the caucus came to the fore when the party expelled the four MPs and threatened to throw them out of parliament.

Vincent Kyamadidi, the MP for Rwampara was the other MP who had been expelled with the so-called rebel MPs, succumbed to pressure and apologised to the party leadership under threat of losing his seat.

When the rebel MPs refused to vacate parliament and were backed by the Speaker of Parliament, Rebecca Kadaga, the government went to court seeking to kick them out of the House.

It argued that once they lost membership of the party on whose ticket they were elected the so-called `rebel MPs’ automatically lost their seats. The Constitutional Court ruled in their favour.

At the time, Constitutional Court justice Remmy Kasule wrote a dissenting judgment.

He ruled that the Speaker of Parliament is not bound by the advice of the Attorney General.

“From  the  ordinary  natural  meaning  of  the  English  words: “advise, advice  and  advisor” an  advice  is  never  binding  on  the  entity  being advised.  Therefore although the Attorney General is principal advisor of Government, the Constitution does not provide anywhere that such advice amounts to a directive that must be obeyed.  Such advice while persuasive is subject to the Executive or Cabinet decision,” Kasule said in his ruling.

He continued: “Therefore Parliament, while it must give all the respect to, cannot be bound by the advice of the Attorney General because no provision of the Constitution provides so.  It follows therefore that as head of Parliament, the Rt. Hon. Speaker of Parliament, while bound to give the highest respect to the advice of the Hon. Attorney General, was not bound to follow the Hon. Attorney General’s advice that she reverses her decision of retaining in Parliament the 2nd, 3rd, 4th and 5threspondents to Constitutional Petitions numbers 16 and 21 of 2013 after they had been expelled from the party on whose ticket they were elected to Parliament.”

The Supreme Court on Oct. 30 agreed with Justice Kasule.

It ruled that the question of vacation from Parliament can only be determined by the High Court and also said that Kadaga did not act in any unconstitutional manner when she refused to heed to the legal advice of the Attorney General.

“Also, the opinion of the Attorney General to Speaker of Parliament for the four MPs to vacate was not binding due to the principal of separation of powers,” the Supreme Court ruled.

Background

Justice Kasule in his detailed ruling in Feb. 2014 said the reason Article  83  (1)  (g)  and  (h) was included  in  the Constitution to address some of the wrongs identified  in  Uganda’s  history  of  political  and  constitutional instability.

The  Constitutional  Commission  headed  by  Justice Benjamin Odoki found  that it had  become  a  practice  by  members  of  the  political  parties  in  opposition crossing the floor in Parliament and joining the party in Government, thus contributing to the creation of a one party state and rendering the working of  multi-party  democracy  impossible.

The  Odoki  Commission proposed  as  a  remedy  that  in  the  case  of  a  multi-party  Parliament  a member wishing to cross the floor must first resign his or her seat and seek fresh mandate from the constituency that had elected him/her to represent the people of that constituency in Parliament.  The same was to apply to one elected as an Independent if he or she wished to join a political party.

Kasule recommended that this clause be restricted to an MP belonging to a political party or who was elected as an independent crossing the floor in Parliament  to  join  another  party  or  leaving  the party  to  become  an Independent  in  Parliament.

“The Article does not  cover  a situation  of  that  Member  of  Parliament  being  in  dispute  with  his  or  her political  party  outside  Parliament  on  matters  having  nothing  to  do  with that member’s duties and responsibilities in Parliament, that for one reason or another, may lead to the expulsion of that Member from the party.”

When Ugandans in 2005 voted for a multi-party system in a referendum, government in a constitutional amendment proposed an amendment to the article to cater for instances where an MP does not leave the party on his or her own volition.

“83 (1) (g): If that person leaves the political party for which he or she stood as a candidate for election to Parliament to join another party or to remain in Parliament as an independent Member; or if he or she is expelled from the political organisation or political party for which he or she stood as a candidate for election to Parliament,” read the proposed amendment.

But the MPs shot that proposed amendment down saying the clause would victimise an MP who supports a position in the national interest, but contrary to the position of his/her party.    Many MPs reasoned that members were elected by the populace  in  the  constituency  including  those  who  do not  belong  to  the party of the MP and should not be deprived of their MP because of that MP being expelled by his/her party.

Only former Prime Minister and now President Museveni’s rival Amama Mbabazi seemed to support the proposed amendment saying that when a party expels a member a multi-party system, that member has no basis to speak in Parliament.

Many MPs disagreed and said that the amendment if passed would make political parties arbitrary intheir decisions and that an MP should not lose his/her seat for standing against such decisions.

Frederick Ruhindi, the current Attorney General said it would be better if the amendment had proposed the circumstances under which an MP is to be expelled from the party so that there is protection to MPs.

When the matter raised a lot of controversy, the then Attorney General Khidu Makubuya, the then Attorney General, proposed that the proposed amendment be deleted “in the interest of peace” because Members had expressed serious concern over it. The amendment was brought back in the Constitutional Amendment Bill 2015 requiring a member to lose his or her seat if he or she ceases to be a member of the party on whose ticket he or she as elected to Parliament.  The amendment was once again defeated on the floor of Parliament. The MPs said they would not debate a matter that was pending disposal in court.

Museveni wants control

Many say the issue is important to Museveni because he wants full control over Parliament. Many times, Museveni has called NRM MPs for caucus meetings to persuade them to toe the line when there are contentious issues in Parliament.

During the debate of all the controversial bills; the oil bills, the Public Order Management, the Public Private Partnership bill, it has taken more than two caucus meetings to make the members to give in to what their boss wants.

At one time during the debate of one of the oil bills, the MPs were asked to line up according to who agreed to the re-committal of the contentious clause 8 and who did not.

It was such issues that put the four MPs in trouble because they disagreed with the Party position on several occasions.

The NRM lawyers argued that it would encourage indiscipline among Party members knowing that they can go against their party and get away with it.

But experts did not buy the indiscipline line. They say indiscipline is what the NRM has been doing by forcing everyone to agree to the position of a few members of the party.

“If the party wants to instill discipline among its members,” Ogalo said, “it can do it through the many other avenues stipulated in its constitution. What they were doing with these four members wasn’t disciplining but intimidating its members into giving in to their whims.”

Walubiri said that the parties should leave the task of disciplining to the electorate.”Let the voters be the ones to decide who is indisciplined and who is not during elections,” he said. “You saw how two of my clients won overwhelmingly during the NRM Primaries, it means that the voters like how they are representing them.”

Two of the four MPs, Sekikubo and Tinkasimire reconciled with the party during talks initiated by Museveni and even participated and won during the recently concluded party primaries.