By Andrew Kibaya
Is parliament really qualified to make such technical recommendations?
The principal role of parliament is to make law for the proper governance of the country. Politics aside, Parliamentarians with their diverse regional, education, religious and social class outlook are equipped to make laws that address majority and minority concerns.
Parliament also performs the oversight role and is charged with ensuring that the government and its departments, agencies, and bodies execute statutory functions within the law. It is permitted to make rules for the proper performance of its functions often done through adhoc, select, sessional, and other committees. It is through committees that parliament mainly interfaces with the public and government institutions for oversight purposes. The powers wielded in this territory are enormous.
A parliamentary seat is a political office that comes with challenges of survival, gamesmanship; manipulation for personal gain and, sadly, posturing for future electoral process. The Chairman of a committee and the more vocal members are law unto themselves – kings on their turf.
There is nothing too professional about this function; except perhaps that the technical aspect to the office is in the application of rules of procedure. Even this, they more often than not get wrong. The constant misuse of powers on occasions created by ignorance of procedure in fact detracts from legitimate investigations.
It is maybe good practice for committees to apply provisions of rule 183 of the Rules of Parliament which empower them to request for the help of Parliamentary Counsel or the Attorney General in the conduct of investigations. Parliamentary Counsel and or AG are likely to remain unmoved by parliamentary and electoral politics and to stick to processes that ensure clean, principled and posture-free investigations. MPs have no right to misuse their powers to even political scores or earn beyond their salary entitlements.
I was once tempted to pen an article moments after appearing (with a client) before an adhoc committee which had two good friends and old classmates at the law school. I held back for the truth I would have told!
Recently, a report of the Adhoc Committee on Energy resulted in Parliament’s recommendation to the executive to cancel the concessions of national power distributor, UMEME, and power generator, ESKOM.
Such failures of the investigative process will sound familiar to persons that have had the misfortune of appearing before committees. They could include being harassed and having non-researched, uninformed, and mob-like adverse recommendations made against them.
There is a clear lack of technical knowledge to inquire into specialised fields on the one hand, and a burning desire to use the opportunity to make as much political and other capital out of these processes on the other. In truth, cases involving public sentiments such as electricity are more likely to be bungled up by Parliament than those involving less sensational and more mundane matters such as Intellectual Property.
Electricity is big news and provides high value political capital for MPs. It will win one votes in townships if they complain about load-shedding and high tariffs, will raise one’s star in rural areas if they complain about lack of connection in a constituency, and more importantly will keep one in the news as the vanguard of the oppressed. I was taken aback on an occasion when a committee member, off-record, expressed his disappointment at a reporter for not having covered the incidents of a previous day when he detained a private company official and rejected the justifications presented.
A good 30 – 45 minutes of the often late to start meetings is spent in interactions between the press and the MPs, the latter with glee applauding a newspaper report of the day which shows them fighting for people’s rights. Much of what is obtained and fed to the public out of committees is sensational.
This partly explains why in fact many such Reports end up being shelved. When a trained and knowing eye looks at the report for further action, even against corrupt officials, in many respects it is nothing more than a sensational story written badly.
For a moment, the population rejoices over the ‘uncovered’ graft, the relevant MP’s star shines ever so brightly and his chances of re-election are bolstered for the foreseeable future. And then the report is shelved for it cannot found valid claims, the MP retains star-status and the population attends to another sensational story of the moment as another MP gets their moment in the sun. MPs are busy people. They attend to plenary, committee, constituency, private and personal matters. But because they have, aside from and in addition to the busy schedule, travelled to someplace to understand how a hydropower dam operates does not give them technical expertise to interpret and understand the intricate specialised field that electricity is.
Having looked at the Committee on Energy report and some of the glaring legal errors shown, I am not sure the lawyers on the committee came to work or even had the thoughtfulness to question, interpret, and/or recommend cancellation of an electricity concession.
This, and other cases, may be an attempt by the legislature to fight for executive territory – and if it is, would not be uncommon in a democracy – even a budding one. The propriety of the attempt is, however, whittled away by the very selfish and immediate personal scores of its architects.
The Energy Report started circulating about six months before its release to parliament. Newspapers quoted it and various drafts made rounds accompanied with approaches and unsavory demands for this and that to ensure that the final one has a particular outlook! Those approached did not budge, and with the exception of a few other factual and legal errors, the final report largely tracks the drafts that made the rounds.
When a committee report is taken to parliament the bigger group does not know better. If the smaller supposedly more committed group botches up the inquiry, the matter then and often takes a populist tinge; “kabandoore” or “kabandabe”.
And then you end with this situation: Parliament, the second (or third) most important organ of the State, actively encouraging the executive to breach a contract with a private party. Not to consider an amendment or review the terms of the concession but to breach it – all this in the face of technical advice from the AG that to do so would be ill-advised! At least MPs should only recommend, with no obligation on the hopefully more discerning, to follow.
Andrew Kibaya is an advocate of the High Court of Uganda