The landmark judgement of the Constitutional Court in George Owor vs- The Attorney General and Wlliam Okecho delivered on February 1, 2011 has sparked off a legal and political controversy. Although I have my political views on the matter, in this piece I confine myself to the legal implications of this judgement.
The petition was filed against one Member of Parliament (Hon. William Okecho) by his political opponent in the NRM. However, the judgement of the Constitutional Court has implications to other Members of Parliament in a similar position.
Indeed, Their Lordships being aware of this position directed the Registrar of the Court to serve, as soon as possible a copy of this judgement to the Hon. Speaker of Parliament and to the Chairman Electoral Commission to take note of its contents and the appropriate action. What then is that appropriate action?
Inconsistent petition
Although the petition challenged acts of the Hon. Okecho as being inconsistent with and in contravention of several articles of the Constitution, the principal article which was interpreted by the Constitutional Court and which is the basis of the judgement and which is causing ripples in the political and legal circles, is article 83(1)g & h of the Constitution
The court decided, and we agree, that Hon. Okecho who was elected to Parliament as an independent, contravened Article 83(1)g & h of the Constitution by standing in the NRM primary elections, and that he ceased being a Member of Parliament and continues to draw emoluments, salaries, allowances and privileges of Parliament unconstitutionally; and that he is not qualified to stand as an independent candidate or on a political party (NRM) ticket. In short, he is not a Member of Parliament and neither is he a parliamentary candidate.
What the court has handed down to Hon. Okecho, and to other Honourables in his category of political crossings, is that you cannot eat your cake and at the same time keep it. If you continue to hold your cake tightly in your hands and try to eat it at the same time, you will bite and injure your fingers. In the process, you may have to swallow blood from your fingers and in this pain; you will drop the cake to the ground and lose it all.
Let us explain why the honourables have lost it both ways. Article 83(1)g & h are very clear. Once a Member of Parliament changes his or her political party or orientation from Independent to a Political Party, that Member of Parliament shall vacate his or her seat in Parliament.
To vacate Parliament requires a positive action of the Member of Parliament, say by resigning in writing or at the very least by stopping to attend Parliament and accepting all emoluments, salaries, allowances and privileges. If the Member of Parliament continues to sit in Parliament and to draw emoluments, salaries and allowances, he or she cannot be taken to have vacated his or her seat in Parliament. That means that the Member remains, albeit illegally, in the eyes of the law, in his original political situation of belonging to the political party under whose banner he was elected in Parliament, or as an Independent if he was elected to Parliament as such.
Against the grain
The reality however is that Hon. Okecho and others like him went ahead and stood as candidates for the next Parliament under different political parties or as independents without vacating Parliament. Their act of contesting elections under different political parties or as independents when they previously stood and were elected to Parliament under other political parties or independents is real evidence of their leaving their political party or their position as independents and joining another party as envisaged in Article 83(1)g & h.
However, since they have not vacated Parliament, they ostensibly remain in their old political position. This constitutes two breaches of the Constitution of refusing to vacate Parliament and purporting to change political parties whereas not. These honourables who have acted in breach of the Constitution only have themselves to blame since they have chosen an uncontemplated and untenable constitutional position of not letting go of the old position and yet aspiring for a new position.
They have lost both as correctly decided by the Constitutional Court. They deserve no sympathy for their flagrant breach of the Constitution. They cannot benefit from their own two wrongs by choosing either to leave Parliament now and contest for the next Parliament or elective positions or remain in Parliament and cease being in the race for the next Parliament or other elective positions.
The other issue that arises is whether the judgement affects other Members of Parliament who were not party to the petition. The answer is a resounding yes. The duty of the Constitutional Court is to interpret the Constitution. The courts interpretation is a declaration of the legal status which binds every person in Uganda regardless of whether that person was a party to the petition which led to the interpretation.
For example, if court declares that a teacher in Kitante Primary School acted unconstitutionally by caning a pupil because caning amounts to cruel and degrading treatment and punishment, the teachers in Bukomero or Kiruhura
cannot continue to cane pupils and ignore the courts interpretation.
There have been voices talking about an appeal. First of all, only the parties to the petition, in this case Hon. Okecho and the Attorney General can appeal. In my humble view, there are no good grounds of appeal.
Secondly, an appeal does not amount to a stay of execution. However, pending the hearing of the appeal, the dissatisfied parties to the petition can apply for a stay of execution in the Constitutional Court or even in the Supreme Court. There are complications though if the appeal is not heard before the elections, and especially if it is dismissed by the Supreme Court. In that case where the challenged members succeed in their re-election bid, the loss of the appeal will lead to very many by-elections.
In the meantime, as the authorities clearly state, a judgement speaks from the date of delivery. The Constitutional Court has spoken. Hon. William Okecho and all Members of Parliament affected by the judgwment must forthwith vacate Parliament and stop all campaign activities.
The Hon. Speaker of Parliament and the Electoral Commission have a duty to uphold the Constitution including the duty under Article 128(3) of the Constitution to accord assistance to the courts to ensure their effectiveness. The Hon. Speaker of Parliament and the Electoral Commission should not compound the breaches of the Constitution by failing to implement this landmark judgement.
Mr Walubiri is a senior member of the Uganda bar, constitutional counsel and law
The petition was filed against one Member of Parliament (Hon. William Okecho) by his political opponent in the NRM. However, the judgement of the Constitutional Court has implications to other Members of Parliament in a similar position.
Indeed, Their Lordships being aware of this position directed the Registrar of the Court to serve, as soon as possible a copy of this judgement to the Hon. Speaker of Parliament and to the Chairman Electoral Commission to take note of its contents and the appropriate action. What then is that appropriate action?
Inconsistent petition
Although the petition challenged acts of the Hon. Okecho as being inconsistent with and in contravention of several articles of the Constitution, the principal article which was interpreted by the Constitutional Court and which is the basis of the judgement and which is causing ripples in the political and legal circles, is article 83(1)g & h of the Constitution
The court decided, and we agree, that Hon. Okecho who was elected to Parliament as an independent, contravened Article 83(1)g & h of the Constitution by standing in the NRM primary elections, and that he ceased being a Member of Parliament and continues to draw emoluments, salaries, allowances and privileges of Parliament unconstitutionally; and that he is not qualified to stand as an independent candidate or on a political party (NRM) ticket. In short, he is not a Member of Parliament and neither is he a parliamentary candidate.
What the court has handed down to Hon. Okecho, and to other Honourables in his category of political crossings, is that you cannot eat your cake and at the same time keep it. If you continue to hold your cake tightly in your hands and try to eat it at the same time, you will bite and injure your fingers. In the process, you may have to swallow blood from your fingers and in this pain; you will drop the cake to the ground and lose it all.
Let us explain why the honourables have lost it both ways. Article 83(1)g & h are very clear. Once a Member of Parliament changes his or her political party or orientation from Independent to a Political Party, that Member of Parliament shall vacate his or her seat in Parliament.
To vacate Parliament requires a positive action of the Member of Parliament, say by resigning in writing or at the very least by stopping to attend Parliament and accepting all emoluments, salaries, allowances and privileges. If the Member of Parliament continues to sit in Parliament and to draw emoluments, salaries and allowances, he or she cannot be taken to have vacated his or her seat in Parliament. That means that the Member remains, albeit illegally, in the eyes of the law, in his original political situation of belonging to the political party under whose banner he was elected in Parliament, or as an Independent if he was elected to Parliament as such.
Against the grain
The reality however is that Hon. Okecho and others like him went ahead and stood as candidates for the next Parliament under different political parties or as independents without vacating Parliament. Their act of contesting elections under different political parties or as independents when they previously stood and were elected to Parliament under other political parties or independents is real evidence of their leaving their political party or their position as independents and joining another party as envisaged in Article 83(1)g & h.
However, since they have not vacated Parliament, they ostensibly remain in their old political position. This constitutes two breaches of the Constitution of refusing to vacate Parliament and purporting to change political parties whereas not. These honourables who have acted in breach of the Constitution only have themselves to blame since they have chosen an uncontemplated and untenable constitutional position of not letting go of the old position and yet aspiring for a new position.
They have lost both as correctly decided by the Constitutional Court. They deserve no sympathy for their flagrant breach of the Constitution. They cannot benefit from their own two wrongs by choosing either to leave Parliament now and contest for the next Parliament or elective positions or remain in Parliament and cease being in the race for the next Parliament or other elective positions.
The other issue that arises is whether the judgement affects other Members of Parliament who were not party to the petition. The answer is a resounding yes. The duty of the Constitutional Court is to interpret the Constitution. The courts interpretation is a declaration of the legal status which binds every person in Uganda regardless of whether that person was a party to the petition which led to the interpretation.
For example, if court declares that a teacher in Kitante Primary School acted unconstitutionally by caning a pupil because caning amounts to cruel and degrading treatment and punishment, the teachers in Bukomero or Kiruhura
cannot continue to cane pupils and ignore the courts interpretation.
There have been voices talking about an appeal. First of all, only the parties to the petition, in this case Hon. Okecho and the Attorney General can appeal. In my humble view, there are no good grounds of appeal.
Secondly, an appeal does not amount to a stay of execution. However, pending the hearing of the appeal, the dissatisfied parties to the petition can apply for a stay of execution in the Constitutional Court or even in the Supreme Court. There are complications though if the appeal is not heard before the elections, and especially if it is dismissed by the Supreme Court. In that case where the challenged members succeed in their re-election bid, the loss of the appeal will lead to very many by-elections.
In the meantime, as the authorities clearly state, a judgement speaks from the date of delivery. The Constitutional Court has spoken. Hon. William Okecho and all Members of Parliament affected by the judgwment must forthwith vacate Parliament and stop all campaign activities.
The Hon. Speaker of Parliament and the Electoral Commission have a duty to uphold the Constitution including the duty under Article 128(3) of the Constitution to accord assistance to the courts to ensure their effectiveness. The Hon. Speaker of Parliament and the Electoral Commission should not compound the breaches of the Constitution by failing to implement this landmark judgement.
Mr Walubiri is a senior member of the Uganda bar, constitutional counsel and law
